Tennis-ball suit bounces ahead

The attorney for a Millfield man accused of causing a panic by tossing tennis balls into Dow Lake has asked a federal judge to ignore a request by state officials to dismiss the case.

John Fisher, 48 sued the Ohio Department of Natural Resources and five employees in U.S. District Court in October, for having charged him criminally in connection with a July 2007 incident.

He claimed filing the charges violated his First, Fourth, Sixth, Eight and Fourteenth amendment rights under the U.S. Constitution (hence the suit is in federal court).

Fisher also claimed the state prosecuted him without probable cause.

The ODNR claimed Fisher put tennis balls into Dow Lake at Strouds Run State Park. Fearing the balls might contain some toxin or biohazard, park officials shut down the beach and boat ramp for four days.

The balls turned out to contain only lake water, but Fisher was charged with inducing panic and littering. He denied placing the balls in the lake, and a judge dismissed the charges out of Athens County Municipal Court.

Fisher's attorney, W. Jeffrey Moore, says the charges were filed only to cover up the incompetence of ODNR park employees, who panicked and over-reacted.

In a dismissal motion filed in November, attorneys for the state said the employees acted responsibly. Knowing the significance of the July 4 weekend to both Americans and "those individuals who do not wish the United States well" (presumably a reference to terrorists), the employees "took appropriate steps to investigate the matter and protect park patrons."

The state also claimed, among other points, that Fisher filed his suit too late; that it is barred by the 11th Amendment to the U.S. Constitution, which limits the ability of citizens to sue states; and that part of the case, since it is against a state agency, belongs in the Ohio Court of Claims.

Regarding the statute of limitations claim, Moore argued in a reply motion, the answer is simple.

The charges against Fisher were filed on Aug. 16, 2007. With a two-year statute of limitations for filing a lawsuit, Fisher filed on Aug. 17, 2009. But Aug. 16, 2009 was a Sunday, and federal law says if the last day of a filing deadline falls on a weekend, the deadline is the following Monday.

On the state-vs.-federal venue question, Moore points out that only state agencies can be sued in the Court of Claims, but the defendants in Fisher's case include five people who work for ODNR, who are being sued both as state employees and as individuals. Since individuals cannot be sued in the Court of Claims, the federal court is an appropriate venue, Moore argued.

As for the 11th Amendment question, Moore cited a U.S. Supreme Court ruling that says if a state official violates a citizen's constitutional rights, that official has acted without state authority, and opens himself to being sued in an individual capacity.

Therefore, he argued, the five ODNR employees can rightly be sued on claims of having abused legal process and intentionally inflicted emotional distress on Fisher.

Oral arguments on the dismissal motion were scheduled for last Monday.