Created on Monday, 04 February 2013 Written by AMANDA LEE MYERS,Associated Press
CINCINNATI (AP) — A Columbus man can pursue a civil rights lawsuit that accuses two city police officers of harassing him by illegally entering his apartment, searching it and forcing him to sit in the back of a police car, a federal appeals court panel ruled Monday.
Tremaine Nelms, 28, sued the city, the two officers and the managers of his apartment complex in November 2008, and a federal judge dismissed the lawsuit in March 2011.
But a ruling by a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati on Monday reversed that decision, allowing the lawsuit to move forward.
Tim Mangan, the city attorney who represents both officers, said Monday that he was considering whether he would ask the full 6th Circuit to deliberate the case or allow it to proceed to trial.
Mangan said that the officers never searched the apartment and that they had every right to go inside because they thought someone could be hurt when no one answered the door.
The panel ruled that the officers did not have any reason to believe someone was hurt inside the apartment and that "Nelms' right to be free from a warrantless entry into his home under the circumstances presented here was 'clearly established.'"
The lawsuit names Officers Michael Fleming and Lowell Whitt, Wellington Way Apartments and its managers, Thomas and Tina Lagos.
Nelms accuses them of violating his constitutional right against unreasonable search and seizure when the officers and Tina Lagos used a key she had for his apartment to open it and enter after he didn't answer the door.
A number for the Lagos rang busy Monday and their attorney didn't immediately return a call for comment.
The officers had responded to the apartment complex in April 2007 after getting a call about a fight.
Nelms' younger brother, then-17-year-old Kaylen Alli, had some friends over at the apartment. The teens told the officers that there hadn't been a fight but that one of them accidentally fell into and damaged a wooden fence.
Fleming and Whitt arrived to a "calm scene" and there was no evidence to suggest there had been a fight, according to court documents.
Alli testified that he answered the officers' questions and had done nothing wrong.
Shortly after, court documents say, Lagos was worried that there might be damage inside the apartment that Alli shared with Nelms "and that Nelms could be continuing the damage because he was angry that the police had been called."
Court records say the officers speculated that someone could be hurt inside and knocked on the door and window. When no one answered, records say, Lagos used a key to open the door and Fleming walked in with his gun drawn, court records said.
Alli testified that Whitt began rummaging through the apartment while Fleming looked for and found Nelms hiding in the shower. He said Fleming swapped his gun for a stun gun and made Nelms get into the back of a police cruiser as the search continued, according to court documents.
Nothing illegal and no evidence of damage was found in the apartment, court records say.
Nelms and Alli were evicted from the apartment, and Nelms, who has a mental disability, says he now suffers from nightmares and depression and fears police, according to the lawsuit.
The lawsuit seeks a minimum of $25,000.