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Amherst retiree sues police, city for malicious prosecution, false arrest following dismissal of bogus charge over non-existent crime

Thursday, August 24, 2023

All Don Margolis did was be kind to a boy who liked his MG sportscar. The next day, police arrested and charged him with a crime the Ohio Supreme Court had declared unconstitutional—even after the boy himself told them nothing improper had happened.

Amherst retiree sues police, city for malicious prosecution, false arrest following dismissal of bogus charge over non-existent crime
Donald Margolis

Cleveland, OH – Today, Donald Margolis, a married, retired smallbusinessman and United States Air Force veteran, sued [amended 10/31/23] the City of Amherst, Ohio officers Brian Griffin, Deven Small, [amended 10/31/23: Jeffry Zemenek, Kyle Ancog,] and Chief of Police Mark Cawthon among others, for federal civil-rights violations, malicious prosecution, false arrest, and civil liability for criminal acts, over Margolis's ordeal last fall.

Mr. Margolis was age 77 at the time of the incident. His [10/31/23 second amended] federal complaint, which can be read here, alleges the following.

In a kind and innocent gesture, Mr. Margolis lets a boy sit in his vintage MG sportscar.

On August 24, 2022, Mr. Margolis, now age 78 and who had no criminal record, was leaving the Dairy Mart located at 167 Cleveland Avenue in Amherst, Ohio when two 12-year-old boys approached him in the parking lot. The boys were intrigued by Mr. Margolis’s vintage 1970s MG sportscar. Mr. Margolis—in broad daylight and in public—permitted one of them to sit in the sportscar.

The boy did for about 30 seconds before getting out and walking away.

Amherst police investigate and learn directly from the boy that nothing improper happened.

A third party reported this interaction to Amherst police, who investigated it. That evening, a Amherst police officer interviewed the boy who sat in the car, and his mother. This interview was videorecorded, and the boy provided Amherst police with a written statement recounting his entirely innocent interaction with Mr. Margolis. The boy said nothing improper took place.

Despite knowing nothing improper happened, police wrongfully arrest, search, charge, and jail Mr. Margolis—for a non-existent crime the Supreme Court of Ohio had declared unconstitutional eight years earlier.

The next day, August 25, Amherst police Sergeant Brian Griffin called Mr. Margolis and asked him to come to the station to discuss the previous day's events.

Once Mr. Margolis arrived at the station, Sergeant Griffin interrogated him.

Griffin and two uniformed Amherst officers arrested him. The other two officers brought him to the courthouse in a police car. The officers took Mr. Margolis’s belongings, including his wallet containing over $1,300 in cash. Mr. Margolis then spent several hours in Oberlin Municipal Court before he was arraigned without counsel, and was ordered to wear a GPS unit.

He was then taken to the Lorain County jail. Because it was after 5:00 pm, Mr. Margolis could not be issued a GPS unit that day and was jailed overnight.

The next day, August 26, Mr. Margolis was issued a GPS unit and then remained on house arrest until on or about October 16, 2022.

Police and the Amherst prosecutor charged Mr. Margolis with “child enticement,” purportedly under Ohio Revised Code § 2905.05. He was forced to retain defense counsel to prepare for a criminal trial.

On October 14, 2022—four days before his scheduled trial—Mr. Margolis’s counsel moved to dismiss the case based on the fact that the Supreme Court of Ohio had invalidated R.C. 2905.05 as unconstitutional in State v. Romage, 138 Ohio St.3d 390, 396, 7 N.E.3d 1156 (2014).

The court agreed, tossing the charge against Mr. Margolis and sealing the record. The court noted, "“Since it is not a law, there is no charge. Since there is no charge, there is no charge to be dismissed. Case closed.”

Mr. Margolis was finally released from house arrest.

Police lacked probable cause to arrest Mr. Margolis for anything, much less charge him with a non-existent crime.

Again, at the time of Mr. Margolis’s arrest, R.C. 2905.05 had been held unconstitutional for over eight years. See id. Because the Ohio Supreme Court had invalidated § 2905.05 on constitutional grounds, the statute provided no support for probable cause to arrest Mr. Margolis; and, in the absence of any probable cause, such an arrest violated Mr. Margolis’s Fourth Amendment right against search, seizure, and arrest. See generally Leonard v. Robinson, 477 F.3d 347, 355, 358 (6th Cir. 2007).

In any case, the videorecorded Amherst police interview of the boy who interacted with Mr. Margolis shows the boy clearly and unambiguously disclaiming any suspicions that Mr. Margolis had said anything remotely inappropriate to him.

This direct statement by the individual involved in the incident—before Mr. Margolis was arrested and prosecuted—destroyed any alternative bases of probable cause Amherst may have otherwise tried to contrive to arrest Mr. Margolis.

Still, Amherst Sergeant Brian Griffin arrested him the next day. Griffin signed a criminal complaint with the written signoff of his co-Defendant Sergeant Deven Small.

The complaint alleges that with these and other actions, officers and the City violated Mr. Margolis’s clearly established constitutional rights.

Mr. Margolis has been sleepless and devastated.

Unsurprisingly, this incident has severely affected Mr. Margolis, his wife, and his family. Aside from the intrinsic violation of his constitutional rights and liberty interests, Mr. Margolis—a longtime small businessman and United States Air Force veteran—also saw his reputation dragged through the mud in open court, in the news media, and across social media.

He had to bear the expense of hiring criminal-defense attorneys to prepare for a jury trial. Thanks to Amherst officers forcing his unwarranted jailing in Lorain County, he contracted COVID-19. He then suffered a stroke, and continues to suffer lasting impacts on his health.

And when Mr. Margolis’s wallet was returned to him, his cash had been replaced by a debit card valued at only $900—so-called "law enforcement” stole about $400, the complaint alleges. The complaint contains demands that this money be returned, and alleges, based on a recent public-records response from Amherst's law director and assistant law director, that relevant records were destroyed.

Chief Cawthon defiantly excused Amherst police's mistreatment of Mr. Margolis, telling the Elyria Chronicle Telegram that in "his view the law remains on the books and he believes there was probable cause to charge Margolis."

Subodh Chandra, Mr. Margolis's lead counsel said, "Unfortunately, Mr. Margolis was subjected to extreme police abuse—charging someone who police know, from the purported victim, is innocent of any crime, and charging him with a crime that doesn't exist to begin with. As a former federal and local prosecutor, I'm simply appalled by this behavior. And Amherst's defiance of the basic rule of law here is astonishing."

"Mr. Margolis will hold them all accountable," Chandra added. "We invite anyone with information about other demonstrable instances of similar misconduct by Amherst police to email us at AmherstPoliceMisconduct AT The police chief has made it clear that he's unapologetic and doesn't care about charging Mr. Margolis with a non-existent crime with no probable cause in any case."

The case is captioned Margolis v. City of Amherst, et al., N.D. Ohio Case No. 1:23-cv-01648 and is assigned to United States District Judge Charles Esque Fleming. The complaint may be read here, as amended.

Amherst's mayor, police chief, and law director did not respond to presuit outreach from Chandra Law, leaving Mr. Margolis with no choice but to proceed with his accountability suit.

Amherst retiree sues police, city for malicious prosecution, false arrest following dismissal of bogus charge over non-existent crime
Donald Margolis happy in his vintage 1973 MG

Chandra Law is experienced obtaining justice for victims of police misconduct. And the firm helped pioneer work in holding individuals and companies accountable for civil liability for criminal acts, securing the two leading Supreme Court of Ohio decisions favorable to crime victims on the topic.

If you think that your rights have been violated, you may contact us to discuss your options.

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Related Practice Areas
Constitutional LawGovernment Ethics, Misconduct, Fraud, & AbusePolice Misconduct & Brutality

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