Ohio man sues town, police in open carry case

He is seeking compensatory and punitive damages of $3.6 million in a lawsuit after he was detained for not cooperating with police


By Mark Gokavi
Dayton Daily News

DAYTON, Ohio — While openly carrying his Springfield XDM .40-caliber handgun, Tipp City resident Roy Call walked into a Riverside Speedway store at 4:30 a.m. Aug. 12, 2012 to buy a sports drink.

That's when — as claimed in a lawsuit against the city of Riverside, its mayor and two police officers — Call said he was illegally detained and briefly had his gun confiscated. Call is seeking compensatory and punitive damages of $3.6 million in a lawsuit field in the United States District Court/Southern District of Ohio in Dayton.

But Riverside police Chief Mark Reiss said his officers acted correctly and all Call had to do was cooperate.

"Had he been truthful with the police and simply provided his identification so that they could have quickly ran it, that encounter would have been over very quickly, within a minute or two," Reiss said.

Open carrying a firearm without a license in Ohio is legal in most circumstances. Call does have a conceal and carry license (CCW), but Reiss said Call did not immediately provide police with his CCW, driver's license or admit that he drove to the gas station.

"Given the time of the day, the location, and the fact that convenience store/gas stations are typical targets for robberies in the middle of the night," Reiss said. "It would seem reasonable in the eyes of a police officer to ask someone who was carrying a gun if it was legally permissible for them to do so."

Police reports show a citizen at the Speedway at 3201 Valley Pike was concerned that a man had a gun in the open and told Riverside police Sgt. Har-old Jones, who motioned to Call to come outside.

The lawsuit recounted that "After Call complied with Jones' request, which was made with no probable cause, or a warrant, and without legal authorization, Sgt. Jones questioned Call, 'Why are you wearing an open gun?' Jones continued to question Call even though Call asked, 'Am I free to go?' to which Jones told him no."

Call was charged with obstruction of justice, but Riverside City Manager Bryan Chodkowski said that charge was dropped Oct. 2.

"Based on the totality of the circumstances, we recognized that it was probably a viable charge at the time," Chodkowski said. "But recognizing what it meant in the grand scheme of things, it wasn't a charge that we felt was worth pursuing."

Jones' incident report said Call would not answer questions relating to his identity. "He eventually said he had no identification with him. This was actually a lie as his identification was approximately 50 feet away in his truck along with his CCW card," Jones' report said. "This was not found for several minutes. He told me he was exercising his Second Amendment rights to openly carry a gun."

Call had his gun taken from him, was handcuffed and placed in the back of a cruiser while Jones and Riverside police officer Matthew Jackson found Call's ID and searched to see if he was under any disability. Call's lawsuit also said he had a recording device which Jones found and turned off and that officers "falsely reported that Call had a history of initiating confrontations with police officers and recording the incidents."

A Facebook page called Miami County, Ohio Concealed/Open Carry includes a link to a YouTube video of a man allegedly stopped in Vandalia for open carrying a gun with a shared link from a "Roy Call."

Asked if he belonged to any groups, another incident report said Call replied, "Yes. The NRA." Call had his gun and ammunition returned to him after his identification check was complete.

The suit asks for $600,000 for compensatory damages for "emotional trauma" and other factors and for $3 million in punitive damages for the "willful, callous and malicious conduct" of the defendants. Call's attorney, Charles E. McFarland of New Castle, Ky., said: "I normally do not comment on ongoing cases to the media, but believe that the complaint speaks for itself."

Chief Reiss added: "With carrying a firearm openly, there also comes responsibility with that. People should realize that they may, given a certain set of circumstances, draw the attention of law enforcement. A responsible person would just identify themselves if there's a brief check to be done and then they would be on their way."

Copyright 2013 Dayton Newspapers, Inc.

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