Cole 'sLaw

[XLFD]

Sergeant Kim Cole at the WMOM/MCP.COM candidate forum for County Sheriff held July 23 introduced himself by looking at the definition of "leadership".  The definition he used said a leader had three qualities.  A good leader is articulate, ethical, and humane.  The insinuation was that the current sheriff, Jeff Fiers, lacked one or more of these qualities, and that he had more of these qualities.  He then made some points to prove one or the other.  I wasn't convinced either way.

Earlier this week, after this candidate forum, I finally got my password and subscription to PACER (Public Access to Court Electronic Records) and witnessed, in some records, a troubling series of events that happened to a Mason County citizen on one day back in February 25, 2008 that led to a lawsuit filed against a Mason County Sheriff''s Department Sergeant, operating under Sheriff Laud Hartrum.  That Sergeant was Kim Cole.

Those who were around over a couple of years ago may remember a thread I put out on Martin Schilling.  He was standing up for property rights for people who may have been burdened by new zoning rules adopted by the County of Mason that were living in single-wide mobile homes.  He had also been allegedly victimized prior to that by a County Sheriff's officer, and that made me label him as the-maverick-of-eastern-mason-county.

The first part of the thread referred to the incident and aftermath of the run in with the law, and even though I knew the officer's name when I wrote the piece, I had doubts that he may have done all that Mr. Schilling had said he had done, and my main source was the City of Ludington Daily News (COLDNews) in this article.  It said:

"Mason County commissioners voted Tuesday to approve a settlement with Martin Schilling for $7,500. In a civil suit filed in federal court in May, Schilling sought $200,000 and attorney fees for two counts of unreasonable seizure, one count of false arrest and exemplary damages.

The sheriff’s office contends it did nothing wrong, but said the county has found it less expensive to settle than defend a suit... Although the county is settling the lawsuit, Mason County Undersheriff Tom Trenner said he believes the deputy in question did nothing wrong, and the settlement came down to a dollars and cents issue of the cost of defense likely being higher than the cost of the settlement.

“Our officer did absolutely nothing wrong and I will stand by that statement,” Trenner said."

This is the same Undersheriff Tom Trenner that a "Sheriff Kim Cole" would fire on day one, according to Candidate Cole.  But what actually happened that day?  I had the court records, but they were for the most part, telling me only one side of the story.  I tried to get Sergeant Cole's side of the story, so I sent him an E-mail very early on Thursday:

"Sergeant Cole,

Thanks for telling me that you had no involvement with the barrier at Cartier Park's pathway.  I'm sure that Epworth Height's gateman was just dropping names to make it look like he knew what he was talking about; you have my blessings if your department uses excessive force on him in the future, LOL.  The barrier has not been replaced across the path since Saturday, so I've had no more run ins.  However, I still have a question for you which I hope you have a good answer for.

About two and a half years ago, in the infancy of my website I did a story on Martin Schilling and his lawsuit with the County with as much details I had, at that time.  Here's the link:  http://ludingtoncitizen.ning.com/forum/topics/the-maverick-of-eastern-mason

Now I have gotten some more information since then, and mind you, I do have Martin Schilling's lawyer, J. Nicholas Bostic, retained for two matters dealing with the City of Ludington.  I do not want to run a hatchet piece without hearing the other side of the coin, but I have a natural dislike for police overstepping their authority too.  Could you please, frankly and truthfully, offer your own version of what happened back in February 2008 that eventually cost Mason County $7500 in a settlement?   Please respond by the weekend's end."

He replied promptly, ten hours later:

"Tom,

If you are looking for the details of that case you will need to FOIA them through the Sheriff's Office.  I too have an attorney, Brett M. Naumcheff out of Grand Rapids, whom I retained during that case, so the specifics I cannot address.  What I can tell you is the case was based on 5 alleged rights violations filed by Mr. Schilling, each seeking $50,000 plus damages.  I was aware the case had settled but did not know it was for $7,500.

Kim"

And I replied at the end of that day, shortly after midnight:

"Kim,

You are well within your right to remain quiet on that issue if it is part of the settlement conditions, but otherwise, I think it would be good for the public to know your side of the story, and see any exculpatory records on your behalf.  When the story of the settlement originally appeared, your name was not mentioned (in the paper), and the officer's alleged actions seemed beyond what many people would think was a valid use of police authority, and not very sheriff-like.  Can you say that you did not violate any of the 5 claimed violations?"

His non-response since then, after his quick replies before, make me suspect he does not want to give details.  He has that right.  But many law enforcement people and others have a habit of equating silence as guilt; look at what many have said about Baby Kate's father, Sean Phillips.  Why would an innocent man not assert his innocence?  It makes him look guilty.  Why does he remain silent even when the punishment has been exacted?  It reinforces that he's guilty.

These lines of reasoning are not legitimate and may be totally wrong, but this isn't the criminal justice system.  This is an election to find who is the best to lead the Mason County Sheriff's Department.  Is it good politically to remain moot on whether you trampled on the basic civil rights of a citizen?

When Kim Cole took the Oath of Office for his job, he swore an oath to the Constitution of the United States and the Constitution of Michigan.  Violating any of the Bill of Rights of an individual you are supposed to publicly serve makes you in violation of your oath of office.  Here is the original complaint filed by Martin Schilling alleging two counts of unreasonable seizure, one count of false arrest, and exemplary damages:       Schilling v. Cole, 2009

When you read through this, be sure to recognize that it is only one version of the events that happened on February 25, 2008.  A brief recap (similar to the previous) was that Martin Schilling had a son who was a fugitive.  Martin was stopped early that day by Sgt. Cole, questioned and let go.  Later he was stopped after coming from a house that was under surveillance for his son, questioned again, detained, arrested, taken in for questioning, and charged with some unknown crime denied by the Prosecutor.

Without any input from Sgt. Cole, these are actually serious charges.

The Fourth Amendment says in its entirety:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 

The term "probable cause" is easiest summed up by "a reasonable belief that someone has committed a crime".

"Search and seizure" is a legal procedure by which authorities who suspect that a crime has been committed do a search of a person's property and confiscate any evidence relevant to a crime.

I am disappointed that Sergeant Cole does not relate what happened in this case at this point in time, what is he afraid of if he hasn't done anything wrong?  Perhaps he is afraid of the truth.  He may resist to tell us now, but he and his attorneys did respond to this complaint and that was part of the record.

A)  For the initial stop of Martin:

9) Defendant had no probable cause to believe that a traffic violation had been committed by Plaintiff.

ANSWER: Defendant admits.

10) Defendant had no probable cause to believe that Plaintiff had committed any offense. ANSWER: Defendant admits.

23) Defendant had no probable cause to believe that Plaintiff had committed any offense to justify seizing or detaining Plaintiff.

ANSWER: Defendant admits.

24) Defendant did not have a warrant or court order authorizing the seizure or detention of Plaintiff. ANSWER: Defendant admits.

And yet:  25) The 7:00 a.m., February 25, 2008 seizure of Plaintiff was unreasonable and a violation of the fourth amendment to the United States Constitution. ANSWER: Defendant denies as untrue.

Stopping someone without no probable cause, no warrant, no court order is a violation of the Fourth Amendment.

B)  In similar manner, Martin was stopped in his vehicle later.  In the defendant's answers, they deny that Defendant had no probable cause to believe that Plaintiff had committed any offense to justify seizing or detaining Plaintiff.  (#32).  This probable cause has never been explained, but due to the previous stop and the lack of any probable cause there, one has to believe that their was no reasonable, articulable suspicion uttered by Sgt. Cole that Martin had or would have committed a crime.  The defendant only denied the assertions, did not explain further, as per their right.

C)  The false arrest charge is also contested by Defendant Cole when he denies that probable cause did not exist.  That cause is once again not articulated or reasoned for the court in his answers.

D)  Affirmative Defenses:  One defense Cole relies on is qualified immunity for his position.  This protects public officials from being sued for damages unless they violated “clearly established” law of which a reasonable official in his position would have known.  The Fourth Amendment is clearly established, and is something all peace officers must be aware of at all times.

He also utilizes (#3) "the injuries about which Plaintiff complains were due in whole or in part to his own intentional acts or omissions." which also seems to be ridiculous considering the lack of any articulated probable cause anywhere.

Here is the answers to the Plaintiff, submitted to the court:  Schilling v Cole Answers.pdf

There was a Request for Mediation  then Mediation and then an Order of Dismissal after they wound up settling out of court for $7500.  A good bargain for the County, a great bargain for Sergeant Cole.  Three years later, it is all but forgotten, except by those with a long memory.  Let's review.

 

Sergeant Cole publicly said a good leader is articulate, ethical, and humane.  Was he a good leader on February 25, 2008?

Did he articulate any reason for what looks like two illegal searches and seizures, and the reason for a likely false arrest?  Allegedly not to Martin Schilling, and since then, not to the public.

Was he ethical in his dealings with Martin Schilling?  Stopping him without probable cause or any other valid reason.  Detaining him and arresting him without any sort of reason made known.  Violating his Fourth Amendment rights, admittedly, on the first charge.

Was he humane in his interaction with Martin Schilling, that is, did he show compassion or benevolence to this innocent man?  Did he show him any mercy and kindness?

 

He was none of these, and he has unapologetically went on with his career since then without having to publicly explain his actions that day.  Is that leadership?

 

One last note.  When this came to light in 2009 (after Jeff Fiers became Sheriff) did Sheriff Fiers defend the action of his sergeant?  No, only Undersheriff Trenner came out publicly defending what Sergeant Cole had done to the innocent father Martin Schilling.  Sheriff Fiers remained out of it.  He has admitted how much he respects the Oath of Office he took to defend the Constitution; was it out of this respect, that he remained out of the fray, as he saw it a violation of Martin's rights?

 

Has that abstention of support created the rift that exists between the two candidates?  Has Sergeant Cole's criticisms of Sheriff Fiers generated from his abandonment during this incident and blossomed over the last three years?  Do we want a sheriff who defends and supports the Constitution of the United States, or do we want one who will offend and undermine that same document?  The difference is clear in this election.

[XLFD]

You talked with some people that worked at the City park, Phil? 

There are nearly 200 people here that are members of the Torch, along with many others who look in, who you believe will not be interested in your 'interesting things'? 

Although, I know someone who also had his own interesting things that he rightly determined no one else, other than his therapist, took an interest in. 

[XLFD]

A couple of hours ago, I got an invite to come in and check out the records on this incident.  Going there tomorrow afternoon to find some answers.

[Angela]

the incident with Cole or another incident?

[XLFD]

The February 2008 Schilling-Cole interactions.