Could Windsor and Obergefell set precedent in Hitchcock, OK case?
Attorney files dismissal in civil rights violation claim
By Robin Dorner
Editor in Chief
In May, the Gamel-Medler family home burned to the ground in a “suspicious fire” in Hitchcock, Okla. Prior to this incident, Randy Gamel-Medler says he attempted to file multiple police reports of discrimination and harassment with the Undersheriff of Blaine County, including an alleged threat to “burn his house down, but his requests were “ignored.”
From a series of stories we brought you earlier this month, Gamel-Medler, the Plaintiff, filed a Complaint in Blaine County alleging “injury to [his] Fourteenth Amendment of equal protection of the law.” He asserted “conspiracy to deprive [him] of his town office and equal protection of the law.”
His claims are for assault, battery, destruction of real and personal property and intentional infliction of emotional distress.
The attorney for the Blaine County Sheriff and Undersheriff has filed a Motion to Dismiss (MTD - see below) for the claim citing, “failure to state a claim upon which relief can be granted.”
Among other statements, the dismissal request states the Defendant lacks facts in his claim, can only list “a decision-maker” in his claim (i.e. only the Sheriff, not the Undersheriff) and that he failed to state a plausible claim against the Defendants.
The MTD refers to Gamel-Medler as “not a protected class” because he is gay.
However, a legal analysis obtained by Freedom Oklahoma outlines the following findings:
- The motion makes some flat out incorrect legal statements. It suggests that only the Sheriff can be sued in his official capacity since he is the final policy making authority. Not true. Not even close to being true.
- The MTD blurs some lines re: protected classes. There can be no dispute that denying a person of life, liberty, property creates a constitutional tort. It does not become an acceptable conduct if the victim is gay -- it is still a deprivation of rights. For example, as a defendant, could they make that argument in light of the Supreme Court's decisions in Windsor and Obergefell, which clearly identified gays as an historically persecuted group of individuals.
- The MTD argument on qualified immunity is weak. This council believes the Amended Complaint alleges sufficient facts.
- The MTD with respect to the Sec. 1985 is probably good. It is probably limited to federal officials.
- The MTD is long on citing cases (whether applicable or not) and short on applicable analysis.
- “The claims made in the defendant’s motion are absurd,” said Freedom Oklahoma executive director, Troy Stevenson. “I think most Oklahomans would be astounded at the idea that officers of the law were claiming that they have no obligation to serve and protect members of the public - no requirement to take police reports, or investigate crimes - if they don't choose to.
“It is also unimaginable that in 2017, officers trusted with the safety of an entire county would contend that bias against gay folks is not discrimination because our community has yet to become an enumerated class. This case in Blaine County has been shocking from the beginning, but the deeper we dive into it, the more disturbing it becomes. This is far from over, and Freedom Oklahoma will follow it until justice is served.”
Freedom Oklahoma is Oklahoma’s statewide advocacy and education organization for the lesbian, gay, bisexual, transgender and queer community.
“The argument that a police department has no constitutional obligation to take a police report is overly simplistic and confuses the discretion afforded to police,” said Tulsa attorney, Mike Redman. “It is true that there is no right to insist that the police investigate every complaint filed with the police -- the police literally receive thousands of reports each day and they do not have the manpower to investigate each. What they investigate is a matter of discretion. That is different from a police department refusing to accept a police report in the first instance.
“A refusal of legal authorities can very well be the basis for constitutional violations if the refusal amounts to unequal treatment under the law. Do you think it would have been legal if law enforcement had refused to accept reports of racial discrimination in the 1950's and 1960's? Of course not. A willful refusal to allow a person to file a police report can give rise to constitutional liability.”
Similar motions are expected from the other Defendants in the next few days. A response to the dismissal is due from the Plaintiff by September 14.
Copyright 2017 The Gayly – August 31, 2017 @ 2:20 p.m. CDT.