Gilbert Rush case settled? – Updated 3/2/15

 Yes, the same guy who murdered Brian Garber shot the fatal shots into yet another man, in this case a gun with no bullets justified even though the warrant was not for this man?

http://www.mansfieldersperspective.com/BrianGarber_NOJUSTICE_NOPEACE.html

Gilbert Rush shooting case settled, in part

MANSFIELD — A $400,000 partial settlement in a civil rights and wrongful death lawsuit was filed recently with U.S. District Court Northern District of Ohio Eastern Division, five years after Gilbert M. Rush Jr. died in a shootout with police. Two chief defendants, the City of Mansfield and Richland County, remain in the district court case.

Rush was killed on Feb. 28, 2007, when members of the Allied Special Operations Response Team raided his home at 2619 Park Avenue East.

The partial settlement represents the first time the family has recovered anything in the litigation, according to Cincinnati civil rights attorney Alphonse A. Gerhardstein, co-counsel with Cleveland area attorney David B. Malik. Parties that have settled include the City of Shelby, Village of Lexington, Capt. Lance Combs and Sgt. David Mack, Gerhardstein confirmed. “We think this is a low settlement given the injuries that have been suffered, and we’re eager to get on with the case,” Gerhardstein said. “By participating in this settlement we’re able to take the case out of the court of appeals and we’re able to move forward in district court, which pleases the family.”

Mansfield’s Law Director John Spon said the city has a valid defense.  Really?, what is it – Professional Courtesy or Immunity?

 

“It’s still pending in district court and will be set for trial, and the city will zealously defend itself,” Spon said. “The City of Mansfield has not entered into any settlement, and it will continue to assert its defenses throughout, not only at trial, but on appeal if necessary.”

Remember this NEXT Election folks

George Limbert, an attorney representing Richland County, said the county looks forward to “vindication.” Richland County is not part of the partial settlement.

The complicated suit includes 45 depositions, 270 pleadings, three appeals and is now back in district court.

Authorities were at the Rush house with a search warrant looking for stolen property. Rush, 49, was not the subject of the late-night raid.

The lawsuit was filed April 11, 2007, in U.S. District Court Northern District of Ohio Eastern Division by Jacob Rush, individually and as administrator of the estate of Gilbert Rush Jr., John Rush, Krysten Blevins, Kameron Rush, Bobbi Jo Dick and Melissa Hedrick.

Gerhardstein said members of the Rush family would like a statement placed in the ASORT training operations manual someday.

In part, it states, “The ensuing lawsuit raised questions about the level of force appropriate for executing a search warrant for stolen property; the quality of the information ASORT should rely on when deciding levels of force; the use of and timing of flash bangs (a stun grenade members of law enforcement use to distract and disorient suspects during a raid); the use of high intensity lights during nighttime raids and their impact on a subject’s ability to identify the ASORT officers as members of law enforcement; and the subsequent quality of investigations into the use of force by ASORT.” – Any rational thinker would agree!

Mansfield police Chief Dino Sgambellone said he could not comment when asked if changes will be made to the training operations manual. “We continue to take guidance from our legal counsel,” Sgambellone said.

Gerhardstein said Wednesday the incident is one of the most outrageous police actions he’s ever seen.

“The alleged theft of baby furniture from Walmart turns into a high-risk SWAT raid in the middle of the night with high-powered SWAT fire with tragic results,” he said. – Agreed!

The original search warrant and the affidavit were signed by Bosko, then a Mansfield police detective, and Mansfield Municipal Judge Jerry Ault. In the warrant, Rush is mentioned only as a resident.  I think we should hold him accountable at the polls!

 

Gerhardstein said what’s most disturbing about the case is the allegations of stolen baby clothes came from a confidential informant working with Bosko. Hmmm?, this cat working with a confidential informant, sound familiar?.

 

“It’s a hotly contested case and we’ve been fighting it for five years. It is a complete travesty of justice. It is something in America that shouldn’t happen,” the attorney said. “If we’re going to direct our law enforcement resources against our citizens, we should make sure we direct it to the true criminals and not the people like the Rush family who are the victims.”

Gerhardstein claims the ASORT team did not “effectively” announce itself before the deadly shootout.

Police said Rush fired his gun first. He died of two gunshot wounds to the chest, according to the autopsy obtained from the Richland County Coroner’s Office. Authorities initially wanted to search for a DVD, DVD player, VCR player, firearms, baby clothes, baby stroller, child seat, baby bedding, stereos and speakers and prescription medication (illegally possessed), according to a copy of the search warrant.  In a second search warrant, Bosko searched the premises on March 6, 2007, in the daytime. Bosko seized 42 items, from a baby high chair to shotguns. Gerhardstein said Gilbert Rush Jr. was a quiet man who lived off the land. “He caught rabbits and squirrels, he had gardens. He was a self-sufficient person,” he said.

Attorney Jim Clymer, who represents ASORT, could not immediately be reached for comment. – If I were this Attorney, I would recuse myself immediately!

Richland County Commissioner Ed Olson said he could not comment on details of the pending litigation. – That’s because it could and will hurt his re-election chances!

Richland County Sheriff J. Sheldon did not return a call seeking comment. – This is because he may have to withdrawl from the “Oath Keepers”

lwhitmire@nncogannett.com 419-521-7223

Written by

Lou Whitmire

News Journal

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Settled from what?

Neither Team Leader (and Mansfield Police Officer) Richard Miller nor ASORT Commander (and Shelby Police Captain) Michael Lance Combs asked any questions to confirm the accuracy of this information, notwithstanding that it was presented by a detective in the juvenile crimes unit who was investigating the theft of some property from a local retail store. (Doc. 124-5 (“Miller Dep.) at 29:3-5 (explaining that Miller did not consider it his responsibility to confirm the accuracy of information); id. at 27:24-28:4 (explaining that Miller did not know if it was Bosko’s responsibility to ensure that the information he provided ASORT was reliable); id. at 27:12-17 (explaining, when questioned a second time, that Miller assumed that it would be Bosko’s responsibility to ensure that information passed to ASORT was accurate); Doc. 229 (“Combs Dep.”) at 104:14-21 (Question: So you don’t get involved in determining the credibility or the reliability of the information relied upon [prior to deploying ASORT]; is that fair? Answer: I would have no way of doing that. We don’t get involved in the investigating preceding the raid or the warrant.”).) Although the warrant was valid for another three days, moreover, ASORT and Bosko chose to execute the warrant approximately five hours after Bosko first received it. (See Warrant.) No member of ASORT appears to have considered it their responsibility to question whether Detective Bosko had learned any other information that might arguably be relevant, or to attempt to discover any other relevant information themselves (i.e., that the targets of this raid had themselves requested police assistance less than two weeks prior). (Doc. 109 (“Sheldon Dep.”) at 78:18-23 (“The ASORT team has a specific function. The ASORT team was directed that they needed to gain entry into this house. They had nothing to do with the investigation.”).
3. The Execution of the Search Warrant
Based entirely on Bosko’s briefing and a “drive-by” that ASORT Team Leader Miller had done of the property, Miller developed an operational plan for the service of the search warrant. (Miller Dep. 17:24-18:5.) *850 ASORT did not deviate from this plan. (Combs Dep. at 184:6-11.)
At approximately 11:00pm that evening, ASORT arrived at the Rush/Hedrick home to execute the search warrant. (Id. at 7; Doc. 169 (“Mansfield MSJ”) at 10.) When ASORT arrived, the lights were off in the home and there was no sign that anyone might be awake. (R & R at 8.) Gilbert Rush, in particular, was asleep. (Id. at 31.)
Combs threw a flash grenade into the air. (Id. at 34.) This was designed to confuse the residents of the Rush/Hedrick home. (See Combs Dep. at 151:17-19 (explaining that the purpose of the flash grenade was to cause a “substantial distraction”).) The other law enforcement personnel on the scene simultaneously began to shout police and bang on the door. (R & R at 35; 9/2/09 Hrg. Tr. at 36:18-21 (“THE COURT: So the `knock and announce’ you are saying is `grenade and announce’? MANSFIELD ATTORNEY: Correct. Correct. And that’s what the testimony shows.”).)[28] So, too, the ASORT members pointed their assault weapons at the windows of the house, although these were equipped with extremely bright lights that prevented residents from making a visual identification of the police. (Id.)[29] From inside the house, the residents could not hear that it was the policethey merely heard “banging and yelling.” (Id.) During this time, Officer Wheeler used a battering ram to enter the residence. (Mack Dep. 81:11-15; Doc. 169-22 (“Wheeler Ex.”) at 4.)
As the above events transpired, Gilbert Rush awoke and retrieved a firearm. He turned on the kitchen light and appeared at the window holding his single-shot shotgun. (R & R at 10.) Richland County Sherriff’s Deputy Robert Gouge then shot at Rush. (Id.; id. at 36.) Rush responded to that gunfire (id.) and multiple assault weapons were then discharged into the kitchen (id. at 10). ASORT Team Members Jason Bammann and Raymond Frazier forced entry into the house through the front-door. (Id.; id. at 40; Doc. 170 (“ASORT MSJ”) at 32.) They yelled “police, search warrant!” and ran into the kitchen. (Id.) There, they encountered Gilbert Rush, who was seated on the floor with blood running down his face. (R & R at 10.) His unloaded shotgun was pointing at Bammann and Frazier, who then shot Gilbert Rush, killing him. (Id. at 10, 40.)

Plaintiffs did not sue Officer Gouge or Officers Bammann and Frazier, who in the last moments of the raid, fired the deadly shots. Under existing precedent (particularly that requiring a segmenting analysis) those officers did not act unreasonably and/or would be entitled to qualified immunity. But the fact that particular individuals may not be liable does not mean that Plaintiffs did not suffer a constitutional violation or that other Defendants are free of liability. Plaintiffs correctly sued the entities and persons who placed the ASORT team in this dangerous position as they executed a warrant seeking stolen property in a manner that masked their identity as police officers…. It was this plan that was set at night utilizing blinding lights; this plan that triggered a huge disorienting explosion simultaneously with the knock and announce; this plan that relied on misleading intelligence to improperly ramp up the arsenal used to confront the Rush/Hedrick family over stolen property; this plan, in short, that caused the individual ASORT officers to fire the deadly and terrorizing shots at a confused and surprised Gilbert Rush and his family. The plan was the moving force behind the constitutional violation. The Defendants responsible for this plan violated the Fourth Amendment rights of the Plaintiffs.

Viewing the facts in the light most favorable to the Plaintiffs, the Defendants deployed a SWAT team that was directed to use a considerable amount of force Defendants’ own counsel admitted readily that the search and seizure began with a “grenade and announce”without asking even the most cursory questions to assure themselves that such deployment was appropriate. (See, e.g., Bosco Dep. at 94:10-96:14; 54:1-8; 145:25-147:2; cf. Lyman Rep. at 23 (“[Bosko] failed to conduct a proper and thorough investigation. . . . [which] resulted in an overreliance on false or misleading information.”).) The highly intrusive search and seizure at issue in this litigation occurred notwithstanding: (1) the absence of any real exigency (highlighted by the petty nature of the crime being investigated); (2) easily obtainable knowledge that residents of the house, including the primary target of the search, had called law enforcement officials recently for help; (3) actual knowledge that law-abiding citizens would be present; (4) exclusive reliance on the Whyels as a source of information about the danger the officers were likely to face and; (5) knowledge that the primary target of the search was a minor suspected of a petty, non-violent, crime. (See Bosko Dep. 98:16-124:6; Bosko Tr. at 2.) While the Court emphasizes the fact-bound nature of its holding, a reasonable jury could find that the use of ASORT, under these circumstances and in this manner, was unreasonable. See Dalia, 441 U.S. at 258, 99 S.Ct. 1682; Keszthelyi, 308 F.3d at 569; Bills, 958 F.2d at 697; Hill, 884 F.2d at 277; cf., e.g., Ramage, 2010 WL 2624128, at *5, 2010 U.S. Dist. LEXIS 63688, at *13 (approving of the use of a SWAT team when officers were pursuing a dangerous suspect suspected of a serious crime).

Wow, Frazier along with 2 other officers fired the fatal shots that killed Mr.Rush…and Gilbert Rush’s gun was not loaded..

They got off free and clear!!!!!!!!! Gilbert and his family lived down the street from me for years!!! me and my family knew them all. It sickens me!! You know what i read in just the first few pages? Eric Bosko!!!!!!!!! he is the cause of all this. he used that woman as a confidential informant. HA! She made the girl steal in the first place, and it was all in the children’s services case notes. Wasnt he working with Children’s services?? That’s what I see!!!!!!!! He caused all of this! Left out information about the guns being safely secured in a cabinet!!! OMG!!! I havent even read the entire thing and i have seen enough to know who caused it! add that to the info we know about Bosko! words fail me. i was at the funeral home for Gilbert. How do you stop these things??

As to Bosko, Rush argues that he made false allegations and acted with a regardless disregard for the truth when he briefed ASORT prior to the raid. (Doc. 192, at 50.) “It is the misrepresentations to ASORT knowing the tactical team would rely on those facts . . . which makes Defendants Bosko and Wendling liable for the excessive force,” under Rush’s theory. Id. at 50 n.171. Rush claims that Bosko should be not be protected by qualified immunity, and instead held liable under Section 1983, because he communicated “materially false statements Case: 1:07-cv-01068-BYP Doc #: 212 Filed: 05/20/09 42 of 75. PageID #: 5666 41 knowingly, or in reckless disregard for the truth,” which “unambiguously signal[led] a need for force causing the use of excessive force.”

That says it all, right there!!!!

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