CINCINNATI (CN) - The attorney for a Cleveland-area gay couple who were allegedly refused pants after being arrested struggled at a Thursday hearing of the 6th Circuit.
Sara Gedeon made oral arguments on behalf of Steven Ondo and Jonathon Simcox, whose suit alleges that Cleveland police officers used homophobic slurs during their arrest and booked them into jail without pants.
The couple alleged excessive force and violations of their equal-protection rights, but a federal judge granted the defendants summary judgment after numerous affidavits were struck from the record.
U.S. District Judge Patricia Gaughan had determined that affidavits about the night Ondo and Simcox were arrested were based on "personal knowledge and belief," and did not rise to the level required to counter summary judgment.
Attorney Gedeon began her arguments by recapping the events on the night of the arrest, which included his clients allegedly being told by police in SWAT gear that "faggots don't get to wear pants to jail."
Judge Jeffrey Sutton interjected to ask if it is normal police procedure to haul criminals to jail in their underwear.
Gedeon replied that the defendants claimed time constraints did not allow the plaintiffs to get dressed, but that her clients' position is that the actions were based on an animus against homosexuals.
She also pointed out that police were allegedly concerned about their safety, as contraband can routinely be snuck into jail via clothing.
Judge Deborah Cook proceeded to ask Gedeon about the affidavits struck from the case.
Gedeon said "the affidavits don't contradict prior testimony, and only contain inconsistencies," but that she would have done things differently if given the chance.
The attorney went on to say that the District Court abused its discretion by striking the affidavits in their entirety, and that the court is meant to "use a scalpel, not a butcher knife," when determining what portions should be eliminated.
Attorney Joseph Scott, representing the defendants, encouraged the panel to affirm, insisting that the affidavits were properly nixed because they were based on belief.
He said "the appellants never sought to change [the affidavits], even after their deficiencies were pointed out."
Tensions rose in the courtroom when Judge Sutton began grilling Scott about whether it was standard procedure to take criminals to jail in only their underwear.
"The timing reason doesn't make sense," Sutton said. "[Officers] allowed [Simcox's] brother to go back up several times to get shoes. The norm [for officer safety] is to deal with the risk to officers by patting down suspects."
Scott replied: "The officers in charge are trying to ascertain if they have the right suspects," and that the plaintiffs are trying to make it seem like a drawn-out encounter even though it was not a significant amount of time.
Nonplussed, Sutton said, "both arguments do not make sense to me."
Scott then pointed out that the officers in charge of the arrest - those who ultimately made the decision to take the men in their underwear - were not named in the lawsuit, and that the officers in the suit cannot be held liable for their superiors' decisions.
The argument concluded with Scott vehemently attacking the plaintiffs' claims.
"Their argument was that they were held for two days without clothes, which is simply not true," Scott said. "[They later] admitted they were given clothes within minutes of being admitted to the jail."
Asked whether she could have amended the complaint to include the commanding officers once they were identified, Gedeon replied that she should have, again saying that if she could go back, she would do things differently.
Potentially foreshadowing the appeal's outcome, Judge Sutton said Gedeon's clients "had to know they were lying."
"[They were] destroying reputations, and when they had no other way out, they finally admitted it," he said. "[That kind of conduct] is quite outrageous. What is your explanation?"
Gedeon - who mentioned before the arguments that it was her first time in front of the 6th Circuit - fell silent for several seconds before answering.
"I have no explanation," she said, before asking the court to "go back to the reason they were not given pants: because they are gay."
Judge Alice Batchelder rounded out the appellate panel.
No timetable has been set for a decision.
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