Tuesday, March 11, 2014

Analysis: City's Lawyers Respond to Federal Lawsuit Filed by Unarmed Man Shot by Police in Warehouse District (Updated)

Posted By on Tue, Mar 11, 2014 at 2:50 PM

Cleveland officer Vincent Montague, right, shot Greg Love in his Range Rover, left, on June 23, 2013. Clevelands lawyers responded to Loves lawsuit filed in federal court
  • Cleveland officer Vincent Montague, right, shot Greg Love in his Range Rover, left, on June 23, 2013. Cleveland's lawyers responded to Love's lawsuit filed in federal court

Original story posted at 1:12 p.m. on March 11. Updated with comments from the plaintiff's attorney, Nicholas DiCello, below.

Last week, we brought you "A Traffic Ticket and a Bullet Through the Chest," the story of an unarmed man who was shot by a Cleveland police officer last June after trying to turn down West Sixth Street. Greg Love (the driver who was shot), Dunja Biggins (his passenger) and Brandon Vason (a bystander who was roughed up by police) filed the lawsuit in federal court last month against the city, the department, and the police officers involved that night.

On Friday, assistant Cleveland law director John Bacevice, filed an answer to the complaint on behalf of Vincent Montague, the police officer who put the bullet in Love's chest, alleging a host of crimes against Love and Biggins they are using to justify the shooting. The alleged crimes and violations — like Biggins standing through the sunroof, reckless and dangerous driving, OVI, and reaching for the officer's gun — were all things police had not accused them of doing at the time, but only now when facing a federal civil rights lawsuit for the shooting nine months later.

You should read the story for more context of the lawsuit, but here's how Cleveland's lawyers are justifying the shooting in their answer to the complaint filed in federal court (full document below, the defendant is Montague, the Plaintiffs are Love and Biggins).

The sunroof

Love and Biggins had been driving around downtown around 2 a.m. on June 23, checking out the busy nightlife. Cleveland's lawyers say Love's attempted right turn down West Sixth was not the first time Officer Montague noticed the Range Rover:

... Defendant witnessed Plaintiff Biggins standing up in the vehicle through an open sunroof yelling and generally creating a disturbance as the same car sped down a Warehouse District Street in Downtown Cleveland earlier that evening.

Analysis: Biggins was not cited for anything that night.

The traffic stop

The traffic stop revolves around Love, facing west on St. Clair, turning right (northbound) on West Sixth, with confusion about whether it was open or not. Here's what the city has to say about why Montague hopped out in front of Love's car when he tried.

... Defendant admits Plaintiff Love illegally turned northbound onto West 6th Street when West 6th Street was closed to northbound traffic...

... Defendant admits informing Plaintiff Love the SUV could not proceed northbound as West 6th Street was closed to northbound traffic. Further answering, Plaintiff Love responded to Defendant Montague as Defendant continued to lawfully order Plaintiff Love to turn around and cease his attempts to illegally travel northbound on a street closed to northbound traffic...

Analysis: Take a look at the surveillance video below. At 12 seconds in, you'll see a black car turn right down West Sixth followed by a white car making the turn at 19 seconds in. Three seconds later, Love's car makes the exact same turn. There is nothing in the city's answer to explain why only Love's car was stopped.

"The cars on that security camera turned right, but there were cars coming the other way that turned left onto West Sixth, that's what gave me the indication I could go," Love explained to Scene in the story. "We had all kinds of vehicles making that turn,"

Things escalate

After a minute and a half of sitting still, blocked by Montague from going down West Sixth, Love reversed his car and backed his way back onto St. Clair, and positioned himself westbound again.

... Defendant asserts Plaintiff Love reversed his SUV in an excessively fast and out-of-control manner after repeatedly ignoring lawful orders from Defendant to stop traveling northbound on a street closed to northbound traffic...

Analysis:The surveillance video shows Love backing up very slowly (at the 1:52 mark), inch-by-inch, taking 42 seconds to fully straighten out back on St. Clair (and he was ordered to do this, per the city's answer states that Defendant Montague "continued to lawfully order Plaintiff Love to turn around and cease his attempts to illegally travel northbound...").

.

... Defendant asserts after Plaintiff Love recklessly maneuvered his SUV into a west-facing direction and stopped the vehicle blocking traffic lawfully traveling southbound on West 6th Street Plaintiff Love continued his belligerent, aggressive, and verbally threatening tirade toward Defendant by shouting across Plaintiff Biggins and through the open passenger window at Defendant. At this point Defendant Montague determined Plaintiff Love to be likely intoxicated and decided to initiate an OVI traffic stop on Plaintiff Love supported by probable cause.

Analysis: He was not blocking southbound traffic on West Sixth: there were a number of people in the crosswalk that would have blocked any hypothetical cars first. He was stuck in the intersection at a red light and by pedestrians crossing in front of him. This is the first time any suspicion of OVI was mentioned; if this were the case that night, Love would have either been administered a test to determine that (at the scene or hospital) or had his license suspended for refusing to do so. Neither happened. There was no mention of OVI on the original citation or court records.

The shooting

... Defendant asserts that in the course of effectuating a traffic stop on suspicion of OVI Defendant ordered Plaintiffs to show their hands which Plaintiffs refused to do. Due to the totality of the circumstances Defendant drew his service weapon both for officer safety and the safety of others in an attempt to effectuate the traffic stop."

... Defendant asserts the still belligerent Plaintiff Love refused the lawful order to show his hands, specifically keeping his right hand out of view from Defendant and in the general area of his waist.

... Defendant asserts that he proceeded to the drivers side of the vehicle in an attempt to stop the intoxicated, belligerent, uncooperative, and generally out of control Plaintiff Love from possibly accelerating his vehicle and putting the lives of numerous pedestrians in immediate danger, reached into the vehicle with his right hand to attempt to turn the vehicle off and curtail the imminent danger to the numerous people in the area of his vehicle. Plaintiff Love continued to keep his right hand from Defendant's view. Defendant, upon reaching with his right hand to turn off the car and while holding his service weapon in his left hand felt Plaintiff Love reach his right hand for Defendant's service weapon at which point Defendant instinctively pulled back from Plaintiff Love and fired one round which struck Plaintiff Love.

Analysis: If Montague did tell Biggins and Love to put their hands up before he pulled out his gun, he must have yelled it from a distance that would have made it pretty difficult to see whether they were complying. Surveillance video shows Love's car stopped in the middle of the intersection facing westbound on St. Clair. At 2:36, you can see Montague coming from out of the picture, quickly marching the 15-yards or so towards the Range Rover with his gun already out in his left hand and immediately reaching through the window with his right hand to find the keys (he couldn't find the keys, not realizing they were located in the center console).

That's when, apparently, Love reached for the cop's gun, instigating Montague pulling back and shooting him the chest. This is farfetched. Montague was standing at the driver's window, reaching in front of Love with his right hand for the keys; in order for Love to be able to get to the gun in Montague's left hand, he would have had to reach over and around the officer's body to get to the left side. Montague would have had to just be holding his left arm up, dangling the gun in the air for it not to be shielded by his body.

Jeffrey Follmer, president of the Cleveland Police Patrolmen's Association, told me about the "gun tug" theory for my original story. I asked him if Love actually did reach for Montague's gun, shouldn't he have been charged with a crime related to that?

"I don't know what he said in the interview," he responded. "You'd think so, I guess. I see what you're saying but I don't think it rose to a crime, if that makes sense."

The vehicle

In the complaint filed on Feb. 14, lawyers for Love and Biggins say: "Neither Gregory Love nor Dunja Biggins possessed any weapons on June 23, 2013."

Cleveland's lawyers dispute that. They admit they found no guns, knives or anything else, but, they say, Love and Biggins were in a car:

... Defendant asserts a vehicle can be used as a weapon insofar as it can cause serious injury or death upon collision or impact and due to the totality of the circumstances mostly the extreme belligerent behavior of Plaintiff Love coupled with his obvious intoxication Defendant reasonably believed Plaintiff Love behind the wheel of an automobile posed a threat of serious injury or death and to any everyone in the vicinity of his vehicle.

Analysis: There are rules on the book that allow officers to ticket drivers who drive dangerously or recklessly. No such citations were issued that night to Greg Love. His one crime that stuck was "NO RIGHT TURN ON RED; HOURS".

***UPDATE***

Nicholas Dicello, the attorney representing Love, Biggins and Vason, spoke with Scene about the city's answer to the lawsuit.

He said the answer from the city's attorney, on behalf of Montague, was not expected in that it went beyond the simple admissions and denials of statements in the complaint usually seen in answers like this.

"I will say this, this an answer that is very unique: all an answer has to do is admit or deny the allegations," he said. "This answer goes well beyond that and makes a number of affirmative representations, which I find interesting... the answer is a pleading, this answer is what they're claiming happened. A lot of it is incredible, first of all, and I think there are certain assertions that are just false."

The filing is also the first time he's ever seen that Montague thought Love was drunk: "He was never tested for an OVI, this is the first time I've ever heard of any allegation of an OVI."

On the accusation that Love looked like he was reaching for his waistband and then reached for Montague's gun, DiCello said "I could have told you what that defense would have been, it's the same in every single case where you have an unarmed man that is shot: not following command, he's reaching for his waistband."

Again, Love was not accused of reaching for Montague's gun after the incident, and was only charged with making an illegal right turn. Here's what DiCello says about that, and Montague's use of force:

Reaching for an officer's gun is a serious crime. So we have one of two things: either the Cleveland Police are not charging people who are grabbing for their guns, or that's not what happened and that's why he wasn't charged for that crime. This is now a defense to a civil lawsuit. They have to come up with some reason to justify the use of deadly force. The only times you can do that are when an officer reasonably fears for his own life, or someone else's life, or he or someone else could be seriously injured, or you have a fleeing felon who has engaged in conduct and demonstrated a willingness to put life and limb in peril. We don't have the latter, he's not fleeing from anything. So they have to come up with an answer or story whereby this officer is in fear of his life, or in fear of the life of others. The answer says he could have used the car as a deadly weapon. Yeah, any car on the street that night could have decided to push the gas and mow people down. Anytime you get in a car you could choose to do that. It doesn't make any sense to me.

The answer filed is only on behalf of Montague. Separate answers will be forthcoming from the city, department, and other parties involved named in the case.

***

Read Scene's story here. Read the response to the complaint filed in federal court from City of Cleveland lawyers, representing Montague, here:

Here's the original complaint:

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