A federal judge has thrown out Joseph Montelon’s lawsuit against Lorain Police Chief Cel Rivera, the city and other police officers after determining that an August 2008 raid on Montelon’s Wickliffe home was justified.
U.S. District Court Judge Solomon Oliver Jr. also dismissed a counter lawsuit in which Rivera accused Montelon of defamation.
The chief’s lawsuit contended that Montelon, a former Lorain police officer and convicted sex offender, portrayed him in a false light in a string of anonymous anti-police letters sent to public officials and the media for years.
The letters stopped following the raid, but Montelon has refused to say whether or not he was the author. He has never been charged with a crime.
Montelon, who declined comment Saturday, had contended in the lawsuit that Lorain police lacked probable cause to search his house. The affidavit used to obtain the search warrant also contained several incorrect statements, Montelon argued.
He and his supporters have accused Rivera of using the investigation into the letters to silence a critic.
Police and prosecutors, however, have insisted that the investigation was legitimate. The letters caused Rivera mental distress and he feared the letter writer would try to harm him or his family, according to court documents filed in the lawsuit.
Montelon’s attorney, Terry Gilbert, who did not respond to requests for comment Saturday, has argued that while the letters might have been inappropriate, they never actually contained a threat of violence.
Oliver, however, wrote that it didn’t matter whether the letters were actually threatening because under Ohio’s menacing by stalking and aggravated menacing laws, there’s no requirement that actual harm or mental distress occur in order for someone to commit those crimes.
“What matters is what the victim believed,” Oliver wrote.
Acting on a tip, Lorain police focused on Montelon and began pulling his trash to search for evidence linking him to the letters. Believing that the officers had been spotted taking the trash, police sought and received a search warrant, which was signed by Lake County Common Pleas Judge Vincent Culotta.
During the search of the house, police discovered copies of some of the letters, smiley face stickers that matched stickers put on envelopes the letters came in, photos of a bulletin board inside the Lorain Police Department and other items.
Police also seized Montelon’s computer, printer and cell phone in additional to several guns, which as a convicted felon Montelon is barred by law from possessing. He has said the guns belonged to his wife.
Oliver wrote that police were able to establish that the search was justified because officers were looking for evidence of two crimes, aggravated menacing and menacing by stalking.
Based on the evidence collected from Montelon’s trash, Oliver wrote that “there was more than a ‘fair probability’ that evidence of a criminal offense would be found during a search of the plaintiff’s home, and therefore probable cause existed.”
Because Montelon couldn’t prove a violation of his constitutional rights by police officers, the officers, Rivera and the city of Lorain are protected by qualified immunity, Oliver wrote in his decision, which was filed late Friday.
Lorain Law Director Pat Riley said he hadn’t read the document, but he called Oliver’s decision “the proper result.”
Anthony Giardini, Rivera’s attorney, said he too was pleased by the decision, which he also hadn’t read. He said police acted properly in the case.
“I never really thought it had any merit,” he said of Montelon’s allegations.
Giardini also said he wasn’t surprised that Oliver threw out Rivera’s counter lawsuit because defamation cases are typically handled in state courts. With Montelon’s case dismissed, there was no reason to keep the chief’s case going in federal court, he said.
In his decision Oliver also acknowledged that police were hunting for a leak within the department. Montelon has never denied that he had internal police documents that he funneled to the media and others, including Lorain City Councilwoman Anne Molnar.
Molnar and then-Councilman Mitch Fallis included some of those documents in their request that the U.S. Department of Justice investigate Lorain police.
The Justice Department began an investigation into allegations of excessive force and sexual misconduct by members of the Lorain Police Department in November 2008, just months after the raid on Montelon’s house.
The probe wrapped up earlier this year, with investigators concluding that excessive force and sexual misconduct had been problems before the investigation began. That conduct, the report concluded, had been allowed to continue unchecked for years because of failures in the accountability and discipline systems within the Lorain Police Department.
The Justice Department gave Lorain a 30-page technical assistance report that suggested numerous changes to the Police Department’s polices and procedures, and Rivera has previously said those recommendations are being reviewed and will be implemented where appropriate.
The FBI also is investigating the propriety of the raid on Montelon, but the status of that investigation remains unclear.
Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.
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