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Johnson v. Weaver

September 29, 2006

FRED JOHNSON, PLAINTIFF,
v.
TRENT WEAVER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Thomas M. Rose

ENTRY AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (DOC. 25), AND TERMINATING CASE.

Pending before the Court is Defendants' Motion for Summary Judgment. Doc. 25. Therein, Defendants assert that Plaintiff lacks evidence that a Constitutional violation occurred, and that, even if one did occur, Defendants are entitled to defenses under the doctrine of qualified immunity and the Eleventh Amendment to the United States Constitution. Because there is no evidence that Defendants conducted a search while trespassing on Plaintiff's property, and because the officers are qualifiedly immune from any Fourth Amendment violations they committed, and because the search warrant that issued to search the house was valid, Defendant's motion for Summary Judgment will be granted.

A. Background

The filings of the parties draw upon what appears to be a striking paucity of discovery conducted to date.*fn1 As the case is before the Court on a motion for summary judgment by Defendants, the Court will draw its understanding of the factual background of the case from Plaintiff's affidavit, doc. 29-2, and those portions of Defendant Trent Weaver's affidavit, doc. 25-2, that are not contradicted by assertions in Plaintiff's affidavit for which Plaintiff would have personal knowledge.

According to Weaver, he was contacted on "October 15, 200[1]"*fn2 by Payne Deer Processing about a sixteen-point buck deer that was brought in for processing during bow-hunting season. The processors informed Defendant Ohio Department of Natural Resources Wildlife Officer Trent Weaver that they had processed a deer with a bullet in it. When Weaver went to the processing center, he was shown a mangled bullet and a deer from which it was said to have been extracted whose hip ball socket joint was shattered. Weaver considered the bone damage impossible for a an arrow to cause. The tag on the deer listed Jeremy MacIntosh of 10240 Carlisle Pike, Germantown, Ohio as the person who had brought the deer in. Weaver arranged with Defendant Erryl Wolgemuth*fn3 to meet the morning of October 16, 2001 at 7:00 a.m. at 10204 Carlisle Pike, Germantown, Ohio. Doc. 25-2 ¶¶ 3-5.

According to Plaintiff Fred Johnson, 10204 Carlisle Pike is located on his 70-acre fenced-in farm along State Rt. 123. House number 10204, however, is not his residence, but the address of a tenant house located on his property. The driveway to his house is one-half mile long, with a locked gate one-quarter mile from the road, where "no trespassing" signs are posted. At the end of the drive, on one side is Johnson's house, 10232 Carlisle Pike, which is bounded on three sides by a second fence, this one made of wood, and on the fourth side by barns. Off to another side of the end of the drive is the tenant house, 10240 Carlisle Pike. Doc. 29-2 ¶ 5.

The morning of October 16, 2001, Johnson and his girlfriend left for work in separate cars. Doc. 29-2 at ¶ 7. When they arrived at the gate on the driveway, they found it blocked by the Wildlife Officer's vehicles. One of the officers approached Johnson and asked if he was Jeremy MacIntosh. Johnson informed them that he was not, and that Jeremy had gone fishing and would not be back until later. He further informed them that he "would get in touch with Jeremy and if they would call [Johnson's] automobile repair shop around noon that he would be able to talk with him." Id. at ¶ 9. Johnson's affidavit continues, "I also told them that I had to get to work now. I also told them not to go on my property and to leave my property." Id.

Johnson asked Weaver and Wolgemuth to move their cruisers so that he and his girlfriend could pass. They complied, but parked again 20 to 30 feet away. Johnson opened the gate and his girlfriend drove her car out. Johnson, however, went to his truck and waited for the law enforcement officials to leave. After five minutes' waiting, Johnson left his truck and walked over to Weaver and Wolgemuth, to ask what the problem was. According to Johnson:

Weaver and Wolgemuth, who remained in their vehicle, told me that they were going to my home to talk to Jeremy. I again told Weaver and Wolgemuth that he was not there but if they should call my shop around noon.they could talk to him. I also made clear that I needed to get to work and that I did not want them trespassing on my property especially around or in my home. When Defendants made clear that they did not care I told them I was going to get the police. They told me that they "[were] the f------ law and we didn't need anybody else." I then told them, "I will go get them then" and turned around to leave. Both Defendants were still in their vehicle when I turned around and walked towards my truck. My back was to the Defendants.

When I was within a few feet of my truck I.heard Defendant Wolgemuth yell from behind me "you're going no where, you're going down you son of a b----". Before I could turn around, Defendant Wolgemuth tackled me in a bear hug trying to throw me to the ground. At one point while he was trying to throw me to the ground I told Wolgemuth I had a bad back. Defendant Weaver joined Wolgemuth, within a few steps/seconds. Defendant Weaver immediately pepper sprayed me causing me to go blind and they both tried to throw me to the ground. They continued to soak me with pepper spray in my eyes, nose and mouth. Wolgemuth may also have pepper sprayed me.

After I was pepper sprayed I was blinded and was just trying to grope and to hold on to avoid a fall. Nonetheless, the Defendants continued to spray me and wrestle me. Afterwards and after I was handcuffed, Defendants purposefully delayed administering any anti spray and made no effort to clean me up for a long time and would not offer any assistance until the sheriffs arrived. Before the sheriffs arrived when I would ask for help they would taunt me and tell me to "shut the f---up you're under arrest". I also asked for medical attention but they told me to "shut the f--- up".

I did not try to hit, scratch or fight either Defendants in any way and I had no idea why I was being attacked.*fn4

Throughout the attack I was not told that I was being arrested or why I was being arrested. Even after I was handcuffed I still was not told why[. H]owever, as Defendants were going through my wallet one of them exclaimed, "it isn't him". I took that to mean that they then realized I was not Jeremy MacIntosh.

Deputy Sheriffs arrived after all the above occurred and took custody of me to transport to the jail at Defendants' request.

Doc. 29-2 ¶¶ 13-18. Johnson was booked into jail, but bailed himself out and got back to his farm by approximately 11:00 am. Doc. 29-2 ¶ 19.

Trent Weaver's uncontradicted affidavit provides the Court with a view to the officers' meeting with Jeremy MacIntosh, who is Johnson's step-son, that transpired while Johnson was being booked on two charges of interfering with a wildlife officer and resisting a wildlife officer in violation of Ohio Rev. Code 1533.67:

At approximately 9:45 a.m. on October 16, 2000 Officer Wolgemuth and I met with Investigator Tunnell of the Division of Wildlife. Following a discussion of the evidence gathered at that point of the investigation, we decided to attempt to contact Jeremy Mac[I]ntosh again.

At 9:59 a.m., [o]n October 16, 2000, the three of us arrived at the 10240 Carlisle Pike, Germantown Ohio, the address listed on the Deer Processing Tag submitted to Payne Deer Processing by Jeremy Mac[I]ntosh and the State Form 58 Deer Harvest Form. We all walked up the lane to the house and knocked on the door. Jeremy M[acI]ntosh came to the door and voluntarily came outside of the house to talk to us. We did not have a search warrant at this time and simply were interviewing Mr. Mac[I]ntosh to find out what happened to the deer in question.

Investigator Tunnell led the conversation with Jeremy Mac[I]ntosh who initially started to tell us a story of how he had killed the deer with a bow out of a tree stand toward the back of the farm. This was told while we were standing in the yard of the house but there were discrepancies and inconsistencies in the story. At this time I suggested that we take a walk so Mr. Mac[I]ntosh could take us to the scene. As we walked[,] Investigator Tunnell and Mr. Mac[I]ntosh were talking while Officer Wolgemuth and I tagged along behind listening to the conversation and observing the farm's layout. The farther we went the more apparent it became that Mr. Mac[I]ntosh was being less than truthful. We had walked nearly to the end of the farm and Mr. Mac[I]ntosh had not yet located the deer tree stand that he had said was still there.

I spoke up at that point and confronted him about his story, and Investigator Tunnell chimed in, stating how what he had told us in the yard is not consistent with what we are being shown. Investigator Tunnell resumed the interview with Mr. Mac[I]ntosh wh[ile] we started walking toward the house along the north fencerow. Following along behind while listening[,] Officer Wolgemuth and I were scanning the area for evidence of a deer being shot. I discovered a text book scene where the 12GA slug haul was laying approximately 25 yards from a blood and deer hair spot on the grass. Approximately 15 yards beyond this was blood and deer hair where it appeared a deer had laid and bl[e]d out, possibly gutted (the gut pile was not present) and dragged streaking the blood toward the west toward their house and barns. This scene was all in a line paralleling the north fencerow in the grass strip. The shooter was in the grass strip and shooting from west to east all about 10-15 feet south of the fencerow. This location was approximately 125 yards from the house beyond the yard and a feed lot. It was on the top of a hill with almost no cover or tall crops around.

Investigator Tunnell was taking the statement from Mr. Mac[I]ntosh. I did overhear Investigator Tunnell warn Mr. Mac[I]ntosh of the penalties of giving a false statement to an Officer and that there did seem to be some discrepancies in his statement. Mr. Mac[I]ntosh did refuse to sign the first statement and then explained how Fred Johnson had in fact killed the deer here with a 12GA shotgun. Officer Tunnell then took a written statement from Mr. Mac[I]ntosh containing the information that made sense and matched the evidence we had so far. In that statement, Jeremy indicated that it had been [his step-dad]*fn5 Mr. Johnson who killed the deer with the shotgun. At approximately 11:10 a.m. while the three of us, all employees of the Wildlife Division and Jeremy M[a]cIntosh were standing in the field, Mr. Johnson arrived at the property racing up the lane in his white [F]ord truck. We noticed that he first went into the house, and then a short while later came out of the house and went into the barn.

He then came driving towards us on an all terrain vehicle belligerently yelling for us to leave.

Weaver Aff., Doc. 25-2, ...


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