The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Two Federal Cases Revisited

Two recent federal court cases caught my eye, so, I thought I would share them.

Each of the cases revisits a topic that I have written to you about previously.

First, on July 16, 2014, the Sixth Circuit Court of Appeals, which is the federal appeals court with jurisdiction in the State of Ohio, reversed a case that had been decided in favor of a Sheriff’s Office employee, in southwestern Ohio, concerning an excessive use of force claim in a county jail.

In this case, which is captioned Cordell v. McKinney, Case No. 13-4203 (6th Cir. 2014); an inmate claimed that he was slammed headfirst into a wall while handcuffed, allegedly in violation of the Eighth Amendment to the U.S. Constitution.

After considering the evidence, the United States District Court for the Southern District of Ohio at Dayton had granted summary judgment in favor of the Deputy Sheriff, finding that: 1. The allegations of excessive force were uncorroborated, 2. The deputy was justified in utilizing the level of force that was exerted, and 3. The deputy was entitled to qualified immunity.

The Sixth Circuit Court of Appeals completely reversed the findings of District Court, after finding that some level of force was appropriate because the prisoner tensed up and turned toward the deputy while being escorted.

However, in determining that a genuine issue of material fact existed as to whether the amount of force utilized was excessive, the court stated, “we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason to use Cordell as a human battering ram.”  The Court based its decision on the severity of the prisoner’s injuries, the threat that the deputy actually faced, in light of the fact that the inmate’s hands were cuffed behind his back and the deputy had him in a submission hold and that the court found no evidence that the deputy made any effort to moderate the level of force that he used.

After reviewing the entire case, however, in my opinion, the case turned on the fact that the inmate was restrained at the time the use of force occurred.

This is illustrated by the Sixth Circuit, at p. 15 of the Opinion, where it states:

We have held in the past that “striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.”  Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see also Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013).  While Cordell admitted turning toward Deputy McKinney, presenting a slightly different factual situation, we doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with human decency.  See Burgess, 735 F.2d at 474-75 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).

As such, it continues to be extremely important to carefully consider the level of force necessary to subdue a subject that is already restrained, as the Sixth Circuit continues to carefully scrutinize these types of cases.

Secondly, on March 26, 2014, the United States, Supreme Court, in U.S. v. Castleman, 134 S Ct. 1405 (2014), considered the issue of what constitutes “the use of physical force” adequate to result in a misdemeanor crime of domestic violence sufficient to trigger the lifetime ban on possession of firearms contained in 18. U.S.C. §922(g)(9).

The case examined the statute’s definition of misdemeanor crime of domestic violence, to wit:

“an offense that… (i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person that is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”

However, the case turned specifically on the meaning of the phrase “the use . . . of physical force,” in the statute.

The trial court had previously held that the defendant’s conviction did not trigger the federal firearms disability on the theory that the use of physical force, for §922(g)(9) purposes, must entail “violent contact with the victim.”

On appeal, the Sixth Circuit affirmed, but, on other grounds.  It held that the degree of physical force required is the same as that which occurs in the statutory definition of “violent felony,” which requires “violent force.”  Therefore, it found that the defendant’s conviction did not qualify as a misdemeanor crime of domestic violence for the purpose of the federal firearms ban.

The United States Supreme Court reversed by indicating that Section 922(g)(9)’s “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction – namely, offensive touching.”  Id. at Syllabus.

Thus, the court found, that defendant’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualified as a misdemeanor crime of domestic violence sufficient to trigger the firearm ban in the federal statute.

The potential impact of this case cannot be understated for anyone that is required to carry a firearm within the scope of his or her employment.

As always, if you have any questions about these or other issues that may impact your livelihood, please do not hesitate to contact your OPBA representative.


The SERB Wage Increase Breakdown

The economic news we are hearing every day has been much better than what we were hearing during 2009. The economy is still growing in the USA, but not real fast.  Finally, the predictions of a healthy economy are almost here!  Healthy economies tend to provide healthy wage increases.

There are many who have been living in fear that the economy is heading into another recession due to the economy slowing down.   Some point to the housing market as a disappointment.  Others complain that the new jobs are mostly service industry and don’t pay enough. Still others say that there are still too many under employed, those working part-time that want full-time.

All are true to one degree or another.  Most of the jobs have been in the service sector, but not all of them.  In fact Ohio has been improving in manufacturing and business jobs for quite a while.  Further, the people that may have given up on job hunting for a while are starting to come back into the job market with some success.

However, the economy in Ohio is doing better than most of the US and the rest of the world.  At this time the unemployment rate is down to 5.5%, which is about a half point lower than the US as a whole.  The State has a budget surplus of a couple of billion dollars.  They have pretty much taken everything from the local governments that they could, so there is only an upside left.  The demand for specialized workers is still high enough that people are moving to the State to find jobs and are indeed finding them.

The various branches of the government are generally improving economically.  While there are few jurisdictions that are still hurting, most are hiring.  Some are still not replacing those who retire at the local level, but the State is hiring more then enough to offset that.

The State Employment Relations Board (SERB) has released the wage settlement report for 2013.  The economic mess really hit around the last quarter of the 2009.  The negative impact from recession hit the public sector twelve to eighteen months after.  The impact to wage increases was plain to see.  That was by far the worst average wage increase ever recorded by the SERB.

The State wide average increase in wages for 2011 was 0.57%.  In 2006 it was 3.01%. - The average wage increase has decreased every year since then.  The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002.  Since 2011 the wage increases have been going up.  In 2012 they were one (1%) percent and 2013 they were almost one and a half (1.47%) percent.  From what I’m seeing at the table, the trend of increasing wages is continuing.

The Cincinnati region had the largest decrease in wage rate increase in 2011, from the following year of 0.71%, down to 0.49%.  The lowest regional increase award goes to Cincinnati again for 2013 at one point twelve (1.12%) percent.  They are the only one of the regions that saw their rate of wage go down from the last wage survey.  Bad time to be in the south west section of Ohio!

Southeast Ohio had the largest wage rate in 2013 at one point nine (1.90%)..  That was the highest increase in wage rates as well.  However the largest increase from 2012 was in the Akron/Canton area.  They increased by almost three quarters of a percent (0.74%).

Counties were the jurisdiction that had the highest increase in rate of wage increase over 2013.  They had the highest percent for the second year in a row.  School Districts came in the largest increase from 2012 with a point six three (0,63%) percent increase over last year.

Police and Fire tied for the largest increase in unit type with one point six one (1.61%) percent.  Fire did better than any other unit six out of the last ten years.  The teachers found themselves on the bottom of the pack again.  They increased their percent wage increase by an average of one and a quarter (1.23%).

SERB Wage Breakdown



Dear Member:

This is a reminder that the next general membership meeting is scheduled for Thursday, October 2,2014 at the Perrysburg Police Department training room.

We would like to thank Chief Dan Paez, who is allowing us to hold the meeting in the training room once again this year. The Perryburg Police Department is located at 330 Walnut Street, Perrysburg, OH 43551. As usual , this meeting will begin at 7:30 pm

Hope to see you Thursday October 2, 2014 at 7:30 pm


Thomas Austin, Executive Director
Ohio Patrolmen's Benevolent Association


Miami Township Police is accepting resumes


Miami Township (Montgomery County), Ohio Police Department

Miami Township Police is accepting resumes from those who would like to join our team of dedicated public safety professionals.  Miami Township, population is approximately 29,000 (unincorporated area) 51,000 combined, and is 5 miles south of Dayton, Ohio.  Our thriving township boasts a diverse business climate, mixed housing stock and exceptional schools.  We have the authorize strength of 41 officers that covers an area of 20.87 miles. The Police Department is in the process of accreditation with the Commission on Accreditation for Law Enforcement Agencies.

The selected candidates will join the Chief in supervising subordinate supervisors who direct employees in the Operations or Administrative and Support Services components of the department.  Applicants must have a minimum of five years’ service in law enforcement supervision at the level of sergeant or above.  They must hold an associate’s degree or higher or working on undergraduate degree with two years of course completion; demonstrate completion of two years of job-related college courses or any equivalent combination of experience and training which provides the required knowledge, skills and abilities.  They must have a valid Ohio driver’s license and current Ohio peace officer training certification. Preferred Qualification are experience in CALEA and experience in facilitating CALEA certification, familiar with police budgets, experience in restructuring of agency, experience in handling payroll, and a proven leader.  Miami Township recognizes only degrees granted from a university or college if the degree granting institution is accredited.  The organization that granted the accreditation must have been officially approved as an accrediting agency by either the U.S. Department of Education or the Council for Higher Education Accreditation.

The Miami Township Police Captain pay range is $69,899.36 to $80,604.81 and includes an outstanding benefits package.  Starting pay will be offered based on knowledge, skills and experience.

The qualification process will include oral interviews and an assessment center conducted by an independent law enforcement consulting firm.  The Township reserves the right to include other standard screening steps as deemed necessary – to include review of past work performance, a background investigation, truth verification, psychological testing, physical and drug screening and the like.

The Police Chief of Miami Township in consultation with the township administrator reserve the right to interview any applicant who has met all qualifications.  Miami Township reserves the right to hire any of the top three candidates.   Hiring will be determined on several factors.  Evaluations from an independent law enforcement consulting firm, recommendations from the interview board, academic background and prior work experience including but not related to.

Interested individuals should submit an application, available on the Miami Township website – www.miamitownship.com – accompanied by a letter of interest outlining their experiences in the preferred qualifications and a brief resume articulating their education, related work experience, achievements, awards and the like, to Ronald L. Hess, Chief of Police, Miami Township Police Department, 2660 Lyons Road, Miamisburg, OH 45342.  Application deadline is September 29, 2014. Up to six candidates will move forward to an assessment center that will be on October 18, 2014. Applications will not be accepted electronically.  In accordance with Ohio public records law, the identity of applicants and application materials cannot be considered confidential.


Job Announcement

Job Announcement


The City of Miamisburg, Ohio (pop. 20,000) is accepting applications for the full-time position of Police Officer.  All applicants must be at least 21 years of age;  possess a valid Ohio driver’s license; have no felony record; and possess a minimum of a high school diploma or equivalent (associate’s or bachelor’s degree is preferred).

Applicants who are not currently a certified peace officer must successfully complete a written Civil Service exam and a physical fitness assessment.  The Civil Service exam will be administered on Saturday, October 11, 2014.  The physical fitness assessment will be administered on Thursday, October 23, 2014.  The locations and times of the testings will be provided at a later date.

Applicants who are currently a certified peace officer with a minimum of one year of full-time law enforcement employment are not required to complete the written exam or physical fitness assessment to be considered for employment.  Prior service will be taken into consideration towards starting pay and leave benefits.

The compensation package includes a pay range of $24.36 - $31.97 per hour with excellent benefits.

To apply, submit completed City Application and Personal History Questionnaire to City of Miamisburg Human Resources, 10 N. First Street, Miamisburg, Ohio 45342 by 5:00 PM on Friday, September 30, 2014.  Visit the Employment Section of the City’s website at www.ci.miamisburg.oh.us for application materials, an important process sheet, and other necessary detailed informational documents.

Equal Opportunity Employer


Understanding Annuities Life is confusing…and so are annuities!

The complexity of modern day life seems to add to confusion, and annuities are no exception. There are many types of annuities and the variations of them continually evolve, making them even more confusing.  Before you consider using an annuity in your deferred compensation plan or other retirement planning, make sure you understand the benefits, costs, and surrender charge period. Not all annuities are created equal. Annuities can provide valuable benefits, but there are typically costs associated with these benefits. As with any investment decision, you need to make certain it is appropriate for your unique circumstances.

There are basically two types of annuities: deferred annuities and immediate annuities. A deferred annuity defers payment, while an immediate annuity begins payment immediately. While this is pretty simple, from this point, annuities get very complex. There are many variations, and they are changing all the time.

If a concern of yours is to help manage your principal from potential losses associated with downturns in the market, annuities can be used to help manage risk. We tend to think that principal protection is always a financial goal that should be considered, but it is even more important as you enter into retirement.

If providing yourself with an income stream is a goal, an immediate annuity might fit into your plan. When you buy an immediate income annuity you are buying an insurance product in which you exchange a lump sum for guaranteed payments for life or a period of time. This may help you manage two big retirement risks: a down market or outliving your money.

Have you used an annuity in your retirement planning, or are you considering using one in the future?  If you have further questions on the various types and features of annuities, feel free to give us a call.

Lineweaver Financial Group w 9035 Sweet Valley DrivewValley View, OH 44125w216.520.1711

Securities offered through Sigma Financial Corporation. Member FINRA/SIPC. Lineweaver Financial Group is independent of Sigma Financial Corporation.

Some fixed annuities come with high guaranteed interest rates that can decrease after a set number of years to a much lower minimum interest rate determined by law.

Investors can lose principal if an indexed annuity is terminated prior to the end of the surrender period.

The principal guarantee and income for life guarantee features of fixed annuities are subject to the claims-paying ability of the issuing company.

If you take an early distribution from an annuity you may be subject to a surrender charge which could result in a loss of principal.  You may also be subject to a tax penalty if you make a withdrawal before age 59.5.