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6308
Richard Franklin section 1983 Nebraska traffic case for ripping up his car. Version 1.
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Richard Franklin section 1983 Nebraska traffic case for ripping up his car. Version 1.
Richard G. Franklin
Thomas P. Cheesebrough
4922 Beaver Creek Rd. Lot 2
Wallace, Idaho 83873
Telephone: 208-682-2449
Fax: 208-682-4315
United States District Court for the Eastern District of Nebraska
P.O. Box 83468 Lincoln, NE 68501-3468 Phone: 402-437-5225 FAX: 402-437-5651
Richard G. Franklin, pro se
Thomas P. Cheesebrough, pro se
Plaintiff's
v
State of Nebraska
Nebraska State Patrol
City of Lincoln
Lincoln Police Department
State Trooper Riedel Badge #371
unknown state troopers who were present
Lincoln City Police officer
civilian female who was present and involved in search
Amoco gas station owner/attendant .
Defendants
Case # 4:04CV3148
Amended complaint to improve format and for clarity.
No changes have been made in any of the factual statements made
in the original complaint.
Jurisdiction
Jurisdiction
1. This court has jurisdiction in this case pursuant to 42 USC 1983, et seq.
2. This court has jurisdiction stemming directly from the constitution which is self enacting.
3. This court also has pendent jurisdiction regarding defamation and other torts.
Statement of the precipitant facts of the case
4.On July 28th, 2003, Cheesebrough was a passenger in a car (which he owned) which was driven by Franklin, on I-80, just west of Lincoln, Nebraska.
5. Riedel effected 2 investigatory traffic stops without just cause and which were discriminatory in nature.
6. The initial stop was purportedly for speeding.
7. It was impossible for plaintiff's to be traveling at the speed Riedel claimed.
8. Plaintiff's were behind two other vehicles traveling at the same speed.
9. Riedel stated that plaintiff's were traveling 3 mph faster than the two vehicles directly in front of plaintiff's.
10. The alleged speeding was in a construction zone where fines are doubled.
11. Riedel issued only a warning ticket.
12. The two stops resulted in an unlawful de facto arrest and detention of the plaintiffs.
13. Riedel instigated an unlawful search of plaintiff's car.
14. The unlawful search resulted in damage to plaintiff's car in the amount of $1,118.65.
15. This incident reeks of discrimination against two white males traveling together in a car with Idaho registration and an apparent perception of sexual orientation.
16. A civilian female who was riding with a female State Patrol Officer was allowed to participate in the search.
17. The Amoco gas station owner/attendant allowed State Patrol to use his tools and facilities in the unlawful search and damage to the car.
18. Unknown bystanders were allowed in close proximity to the car while it was being
searched at the Amoco gas station.
19. This incident resulted in:
(a). humiliation and defamation in the public eye along a busy highway,
(b). an extreme invasion of privacy,
(c). caused extreme emotional distress and a lingering distrust of police,
(d). an inability to fully enjoy plaintiff's vacation,
(e). wanton destruction of private property.
(f) fear of being shot or jailed without cause,
(g) fear of losing the car,
(h) Plaintiffs were forced to travel several miles to the Amoco gas station, between two
state patrol cars, not knowing if that was the real destination or not.
(I) The escort caused more humiliation and defamation in the public eye and more
emotional distress and fear.
(j) Franklin is disabled by Rheumatoid Arthritis since 1984 and suffers from depression, a
nervous condition, hypoglycemia and high blood pressure.
(k) Cheesebrough suffers from Bi-Polar disease, (Manic-Depressive).
(l)Plaintiff's physical and emotional conditions were exacerbated by the crimes of the police.
Details of the 2 investigatory stops and detention/false arrest by Riedel
20. Franklin was driving in the left lane through a construction zone directly behind two other vehicles.
21. Riedel, in a marked Nebraska State Patrol car was parked in a median crossover, facing the eastbound lanes.
22. Plaintiff's car was approximately two miles down the road when Riedel pulled up beside it.
23. Riedel dropped back and activated the overhead lights.
24. Franklin pulled over to the shoulder and stopped immediately.
25.Riedel walked up to the passenger side of plaintiff's car and asked for drivers license, registration and proof of insurance.
26.Franklin provided license, Cheesebrough provided registration and proof of insurance from glove compartment.
27. Franklin asked Riedel the reason for the stop.
28. Riedel acted surprised and said, "What?"
29. Franklin repeated the question.
30. Riedel stated that Franklin had been traveling at a speed of 71mph in a 65mph construction zone.
31. Riedel asked who owned the vehicle because it was registered in a name other than Franklin's.
32. Cheesebrough stated that he was the owner and produced his drivers license at Riedel's request.
33. Riedel instructed Franklin to exit the car and have a seat in Riedel's car. Franklin complied.
34. Riedel began to question Franklin, a long list of personal questions, irrelevant to the purported reason for the stop, to wit in part:
35. How did you two meet?
36. How long have you known each other?
37. Where do you live?
38. Have you lived together in other places?
39. How long have you lived in Idaho?
40. Where are you going?
41. Where are you coming from?
42. Why are you on this road?
43. Franklin asked Riedel, 3 separate times, if plaintiffs were suspects of some kind.
44. Riedel responded, "No, I am just doing my job."
45. After several minutes, Riedel walked up to plaintiff's car and questioned Cheesebrough, to wit, in part:
46. How did you two meet?
47. How long have you known each other?
48. Where do you live?
49. Have you lived together in other places?
50. How long have you lived in Idaho?
51. Where are you going?
52. Where are you coming from?
53. Why are you on this road?
54. Riedel returned to his car.
55. Riedel wrote Franklin a warning ticket for speeding.
56. Riedel gave Franklin all of the documents he had taken from plaintiffs
57. Riedel told Franklin he was free to go.
58. Franklin exited Riedel's car and almost closed the door.
59. Riedel ordered Franklin to re-enter Riedel's car for "a few more questions". This constituted a second investigatory stop.
60. Franklin asked Riedel for a 4th time if plaintiff's were suspected of any crime.
61. Riedel said "No".
62.Franklin told Riedel he was performing an illegal detention of plaintiffs.
63. Riedel denied it and said, "I just have a couple of questions, then you can go."
64. Riedel asked if there were guns, drugs or any large sum of cash in the vehicle.
65. Franklin replied that there were none.
66. Riedel recited a long list of drugs individually asking Franklin if there were any of them in the car.
67. Franklin responded, "No" to each question.
68. Riedel asked if he could search plaintiff's vehicle.
69. Franklin responded, "I would rather you didn't."
70. Riedel asked, "If there is nothing to hide, why not let me search?"
71. Franklin responded, "I hate that expression. There is nothing to hide but there is our rights and privacy to protect."
72. Riedel asked again if he could search the car.
73. Franklin responded, "I would rather you didn't."
74. Riedel became more agitated, told Franklin to stay in the car, walked behind the car
and made a cell phone call.
75. Franklin saw Riedel walk back around the right side of his car and Franklin exited the car.
76. Franklin told Riedel, "If you are going to make a big deal of this and keep us here all
day, go ahead and search, you won't find anything."
77. Riedel responded, "You told me I couldn't search and I am not going to search. I called for a dog to sniff the car."
78. Riedel never asked the registered owner of the car, plaintiff Cheesebrough, if he could search the car.
79.Almost the entire incident is on the video tape taken directly from Riedel's vehicle so further detail should not need to be narrated here, with the following exceptions:
80. The Lincoln cop was standing at the right front corner of plaintiff's car, glaring at plaintiffs.
81. His hand was on his gun, the holster was unsnapped, the gun was at least half-cocked.
82. Franklin witnessed an attempt to put a plastic bag, containing an unknown substance, under the back seat cushion of plaintiff's car. This action was stopped by another cop.
83. Plaintiffs have a copy of the videotape from Riedel's car.
84. Plaintiffs have the screwdriver, which was first used to attempt to put a hole in the
trunk of plaintiff's car along the highway.
85. On August 23, 2003, plaintiffs mailed a letter to Governor. Johanns detailing the incident
of terrorism under color of law perpetrated by Nebraska State Troopers.
86. This letter was also sent to:
87.Office of the Attorney General
88. Nebraska Public Service Commission
89. Commander Nebraska State Patrol
90. The letter stated that plaintiffs would not rest until justice was done, to the extent of
filing a civil suit if necessary.
91. Plaintiffs received a letter from Col. Tom Nesbitt, Superintendent of the Nebraska State Patrol, dated September 3, 2003, stating that: Lt. Stanczyk had inquired into the circumstances of the incident, that a video tape of the incident was available for plaintiffs to view,
93. that Trooper Riedel had been made aware of plaintiff's concerns,
94. that appropriate administrative action had been taken against Riedel.
95. Plaintiffs received another letter from Col. Nesbitt, dated September 30, 2003, stating:
that plaintiff's request for results of Internal Affairs Division investigation and explanation of "appropriate
administrative action" was denied but a copy of the videotape was included.
96. On October 13, 2003, plaintiffs wrote another letter to Gov. Johanns to inform him
that plaintiffs had received no response from anyone except Col. Nesbit.
97. Plaintiffs received a letter, dated October 29, 2003, from Gov. Johanns, which
informed plaintiffs that:
98 .Trooper Riedel's supervisor had reviewed the stop and had taken appropriate
administrative action,
99 .that Steve Shaw, legal counsel for the Nebraska State Patrol would contact plaintiffs
about filing a claim for damages to the car during the search.
100. Plaintiffs received a letter, dated November 12, 2003, from Steve Shaw, which
included the proper forms to file a claim for damages.
101. Plaintiffs received a letter, dated December 8, 2003 from Jennifer Holdsworth,
Secretary of the Nebraska State Claims Board acknowledging receipt of the claim
forms.
102. Plaintiffs received a letter dated March 12, 2004 from Steve Shaw, offering
$1,118.65 for the damage to the vehicle and an apology for the "delay,
inconvenience and discomfort" during the stop and for the damage to the car.
103. In a letter dated March 16, 2004, plaintiffs informed Steve Shaw that plaintiffs
would accept the amount indicated for the actual damage to the vehicle but not as
full settlement for the civil rights violations and that plaintiffs would take the matter
to court.
104. In a letter dated, March 17, 2004, plaintiffs informed Steve Shaw that, under advice
of council, the offer for damage to the vehicle would not be accepted if it was
construed to be a full settlement of all claims.
Summary
105. The actions of defendants constitute causes of action for violations of civil rights of
plaintiffs.
106. Title 42 USC 1983, et seq.
107. Violation of the 4th and 14th Amendments to the US Constitution
108. Violation of the Constitution of the State of Nebraska, Article I., Sec. 7 ‘The right of
the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated......'
109. Violation of the Constitution of the State of Nebraska, Article I., Sec 12
' No person shall be compelled, in any criminal case, to give evidence against
himself,....'
110. An investigatory stop and search is not constitutionally permissible where the officer
has no reasonable suspicion a person is committing, has committed, or is about to
commit a crime.
State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977).
111. A defendant is guaranteed the right to be secure in his person, house, papers, and
effects, against unreasonable searches and seizures.
State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992)
112. The test to determine whether an investigative stop is justified is whether the police
officer has a reasonable suspicion based on articulable facts which indicate that a
crime has occurred, is occurring, or is about to occur and that the suspect may be
involved.
State v. Rein, 234 Neb. 917, 453 N.W.2d 114 (1990).
113. 28-924
Official misconduct; penalty.
(1)A public servant commits official misconduct if he knowingly violates any
statute or lawfully adopted rule or regulation relating to his official duties.
(2)Official misconduct is a Class II misdemeanor.
Source: Laws 1977, LB 38, § 209.
114. A citizen has the right to keep existence of his private papers and effects secret from
the world unless required by due process of law to make disclosure.
Clarke v. Neb. Nat. Bank, 49 Neb. 800, 69 N.W. 104 (1896).
115. Miranda warnings are required during "custodial" interrogation by police; that is,
when a person has been "taken into custody or otherwise deprived of his freedom of
action in any significant way." The ultimate question is simply whether there has
been a formal arrest or restraint on freedom of movement of the degree associated
with formal arrest. Whether a person is in custody does not depend on the subjective
views of either the officer or the subject. An officer's knowledge or beliefs are
relevant only if conveyed, through words or actions, to the subject. The issue is how
a reasonable person in the subject's circumstances would view the situation....
Wright v State, 766 N.E.2d 1223 (Ind. Ct. App. 2002)
116. Illegal use of drug sniffing dog after traffic stop was completed.
The law is clear that a canine sweep is not a search within the meaning of the Fourth
Amendment. However, while a canine sweep is not a search, upon the completion of
a traffic stop, an officer must have reasonable suspicion of criminal activity in order
to proceed thereafter with an investigatory detention. Therefore the critical facts in
determining whether a vehicle was legally detained at the time of the canine sweep
are whether the traffic stop was concluded and, if so, whether there was reasonable
suspicion at that point to continue to detain the vehicle for investigatory purposes.
117. In conclusion the appeals court stated, "because a canine sweep is not a search, the
officer had reasonable suspicion for the initial stop [of the vehicle], and the vehicle
was still lawfully detained at the time of the canine sweep," it affirmed the trial
court's denial of the motion to suppress. However, the court also made the following
cautionary note, "While we recognize that our holding in this case may be subject to
abuse, we trust the trial courts to carefully weigh the evidence and to be vigilant in
ensuring that the State meets its burden of showing that the traffic stop was no
longer than necessary given the circumstances surrounding a particular stop."
Bradshaw v. State, 759 N.E.2d 271 (Ind. App. 201)
118. "When the [justification for] a police officer's continued detention of a person
stopped for a traffic violation is not related to the purpose of the original,
constitutional stop, and when that continued detention is not based on any
articulable facts giving rise to a suspicion of some separate illegal activity
justifying an extension of the detention, the continued detention constitutes an
illegal seizure."
73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696.
119. A person has been `seized' within the meaning of the Fourth Amendment <http://supct.law.cornell.edu/supct-cgi/get-const?billofrights.html> . . . if, in
view of all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.
United States v. Mendenhall, 446 U.S. 544 <http://supct.law.cornell.edu/supct-cgi/sup-choice.cgi?446+544> (1980),
120. "Most people believe that they are validly in a police officer's custody as long as the
officer continues to interrogate them. The police officer retains the upper hand and
the accouterments of authority. That the officer lacks legal license to continue to
detain them is unknown to most citizens, and a reasonable person would not feel free
to walk away as the officer continues to address him."
73 Ohio St. 3d, at 655, 653 N. E. 2d, at 698
121. (plurality opinion) ("[A]n investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop")
Florida v. Royer, 460 U.S. 491 <http://supct.law.cornell.edu/supct-cgi/sup-choice.cgi?460+491>, 500 (1983)
122. ("stop and inquiry must be `reasonably related in scope to the justification for their
initiation' "
(quoting Terry v. Ohio, 392 U.S. 1 <http://supct.law.cornell.edu/supct-cgi/sup-choice.cgi?392+1>, 29 (1968)).
United States v. Brignoni-Ponce, 422 U.S. 873 <http://supct.law.cornell.edu/supct-cgi/sup-choice.cgi?422+873>, 881 (1975)
123. Citizens do not forfeit their constitutional rights when they are coerced to comply
with a request that they would prefer to refuse."
Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed.2d 389,
(1991).
124. Asking about weapons in the car during a routine traffic stop.
The issue presented in the case was whether a police officer may routinely ask a
driver legitimately stopped for a traffic violation is he has a weapon in the vehicle or
on his person. The court stated that a police officer may not as a matter of routine
practice make such an inquiry. More specifically the court stated that prior to
making an inquiry about the presence of weapons, the officer must either: (1) be
warranted in believing that his safety was threatened; or (2) the question must
reasonably relate to the basis for the traffic stop. When an officer's safety is not at
risk, that officer may not as a matter of routine practice inquire about the presence
of weapons. The police do not have a right to inquire about the presence of weapons
without some reasonable and articulable basis for the question.
Lockett v. State N.E.2d (Ind. Ct. App 12/20/99
["(A)n investigatory detention [may] exceed constitutional bounds when extended
beyond what is reasonably necessary under the circumstances which made its
initiation possible."];
People v. McGaughran (1979) 25 Cal.3d 577, 586
125. "(M)otorists ordinarily expect to be allowed to continue on their way once the
purposes of a stop are met. . . . Further delay is justified only if the officer has
reasonable suspicion of illegal activity or if the encounter has become consensual."
U.S. v. Anderson (10th Cir. 1997) 114 F.3d 1059, 1064;
U.S. v. Shabazz (5th Cir. 1993) 993 F.2d 431, 436;
U.S. v. Ramos (8th Cir. 1994) 42 F3d 1160, 1164; ;
U.S. v. Sandoval (10th Cir.1994) 29 F.3d 537, 539-40
126. "When the driver [who has been stopped for a minor traffic violation] has produced
a valid license and proof that he is entitled to operate the car, he must be allowed to
proceed on his way, without being subject to further delay by police for additional
questioning."
Berkemer v. McCarty (1984) 468 US 420, 439
127. "The stop and inquiry must be reasonably related in scope to the justification for
their initiation."];
People v. Bell (1996) 43 Cal.App.4th 754, 761; U.S. v. Hill (6th Cir. 1999) 195 F.3d
258, 268-70.
128. An officer who has detained a suspect) may ask the detainee a moderate number of
questions to determine his identity and to try to obtain information confirming or
dispelling the officer's suspicions. But the detainee is not obliged to respond. And,
unless the detainee's answers provide the officer with probable cause to arrest him,
he must then be released.
Berkemer v. McCarty (1984) 468 US 420, 439-40
129. An officer must initially restrict the questions he asks during a [traffic] stop to those that are reasonably related to the justification for the stop. He may expand their scope only if he notices particularized, objective factors arousing his suspicion."];
U.S. v. Perez (9th Cir. 1994) 37 F.3d 510, 513;
Williams v. Superior Court54 (1985) 168 Cal.App.3d 349.
Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.
(7th Cir. 2002) 277 F.3d 947 954.
130. officers "may not conduct an exploratory interrogation designed to elicit
incriminating information wholly unrelated to the matter at hand."]. ALSO SEE
People v. Lingo (1970) 3 Cal.App.3d 661, 664
131. ["(The officers)continued to detain defendant, his companion and his vehicle . . . to
make inquiry about an offense which, admittedly, they had no grounds to suspect
had been or was being committed."];
U.S. v. Chavez-Valenzuela (9th Cir. 2001) 268 F.3d 719, 724, fn.4 ["(T)he question
about Chavez-Valenzuela's occupation, unrelated as it was to the legitimate purpose
for the stop, may have violated Terry."]; U.S. v. Pruitt (11th Cir. 1999) 174 F.3d 1215,
1221 ["Additional ‘fishing expedition' questions such as ‘What do you do for a
living?' and ‘How much money did your van cost?' are simply irrelevant, and
constitute a violation of Terry."].
People v. Grace (1973) 32 Cal.App.3d 447, 452-3.
Prayer
132. Plaintiffs demand a jury.
133. Plaintiffs seek actual damages in the amount of $1,118.65
134. Plaintiffs seek compensatory damages of $5 million dollars, each.
135. Plaintiffs seek punitive damages of $10 million dollars, each.
136. Plaintiffs seek declaratory relief declaring that indeed the crimes committed by
police were crimes.
137. Plaintiffs seek mandamus:
To fire or severely reprimand and retrain Riedel and the dog handler concerning
search and seizure.
reprimand of the other police involved,
an evaluation of the practice of allowing police ride-a-longs if the rider is not
required to remain in the police vehicle during police operations,
To fire or severely reprimand and retrain the Lincoln officer concerning his
jurisdiction.
Investigation of Lincoln police involvement outside of their jurisdiction on their own
initiative.
Provide details of the gas station owner/attendant and his arrangement with the State
Patrol to use his facility and tools.
A copy of the State Patrol IAD report of their investigation of this incident.
Plaintiffs seek such other relief as may be granted by the court.
Signed___________________ Richard G. Franklin, plaintiff. Date: Saturday, May 8, 2004
Signed___________________ Thomas P. Cheesebrough, plaintiff Date: Saturday, May 8, 2004
DECLARATORY STATEMENT
I,Thomas P. Cheesebrough, do hereby declare, under penalty of perjury, that all of the above, as set forth here by co-plaintiff, is true as it applies to the events in which I was personally involved and witnessed.
______________________________
Thomas P. Cheesebrough