Crime & Courts

Kansas bicyclist arrested for refusing to give his birthday sues police department

A man suing Hutchinson and one of the town’s police officers claims he was unlawfully arrested after he refused to tell the cop his birthday when he was stopped for riding a bicycle on a sidewalk at night without a light.

Jon Heter, 55, of Hutchinson, named the city and officer Josh Long as defendants in a suit filed Monday in federal court. It seeks more than $75,000 in damages from claims of unlawful arrest and constitutional deprivation.

The suit stems from Long’s arrest of Heter and a subsequent drug conviction that was overturned by an appeals court. Heter ultimately spent three months in prison, according to the lawsuit filed by his attorney, Larry G. Michel of Salina firm Kennedy Berkley Yarnevich and Williamson.

“Hutchinson violated Jon’s federal rights when he was unlawfully seized, and thus deprived of his rights and privileges secured by the Constitution and laws,” Michel wrote in the lawsuit. “Hutchinson inadequately trained Officer Long and/or had customs or policies that led to the violation of Jon’s constitutional rights.”

Officials with the city and its police department did not respond to a request for comment Monday afternoon or Tuesday. Long is a field-training officer with the department.

An unpublished opinion by the Kansas Court of Appeals filed in January details the facts of the case.

Heter was riding his bicycle on a sidewalk shortly after midnight on Nov. 17, 2016, as Long was patrolling in the same area. The officer observed a person on a bike without a headlight and yelled to the rider to stop.

When Long asked for Heter’s name and date of birth, Heter gave a fake name. Heter then refused to provide his birthday, and Long arrested him on suspicion of interfering with law enforcement.

Long did not learn that Heter gave a fake name until searching his belongings after the arrest, and he then discovered that Heter had an outstanding warrant for his arrest. Afterward, Long decided to take Heter’s bicycle to the police station for safekeeping. He then searched a container on the bike, finding a cigarette box that held a glass pipe and methamphetamine.

Heter was charged in Reno County with possessing meth and drug paraphernalia, convicted and sentenced to a year of probation with an underlying sentence of 17 months in prison.

The appellate court later reversed the conviction, vacated the sentence and remanded the case to the district court for further proceedings.

The judges said Long did not have any legal basis to arrest Heter, and evidence of the drug crimes should be suppressed because it was found through an illegal search and seizure.

The appellate court decision

The judges said Kansas courts have previously ruled that when police question someone, “a refusal to answer furnishes no basis for an arrest.” Additionally, state law forbids police from arresting someone suspected of committing only a traffic infraction.

The suspected crime for which Long arrested Heter only applies in situations involving traffic, the judges said, and a bicycle ridden on the sidewalk does not meet the definition of traffic in Kansas statutes.

The law states that “no person shall willfully fail or refuse to comply with any lawful order or direction of any police officer ... with authority to direct, control or regulate traffic.” The definition of “traffic” in state law includes only the use of any highway. The judges said a sidewalk does not fit into the definition of a highway.

Since Long had no legal basis to arrest Heter for either refusing to provide his birthday or biking on a sidewalk at night without a headlight, he was required to let the cyclist “leave after a reasonably brief period of time,” the judges said. Once Long handcuffed Heter, “the encounter became an unreasonable search and seizure because Officer Long had no legal basis to make an arrest.”

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