Canton OH Police CCW Holder Encounter

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the open carry case over in Philadelphia Pa ranks right up there. That guy was also given a not guilty verdict and can probably sue them.
 
Maybe I don't understand the finer legal points of this but it seems there was a twist to it. The judge could have simply ruled that Bartlett did attempt to notify and found him not guilty.

But instead, the judge ruled that the search was illiegal, and Bartlett couldn't be charged with failure to notify arising from an illegal search. So charges were dismissed.
 
This whole thing actually appears to be heading in a direction that makes a little more sense. I may have to eat crow, but I sure am happy to see justice prevailing.
 
Thanks for the updates. I have been following the case since I initiated this thread.

Please keep us informed to any post activity by the defendant and or the government.
 
Is there enough here to support ethics charges against the prosecutor? I'd love to see him get Nifong'd.

But instead, the judge ruled that the search was illiegal, and Bartlett couldn't be charged with failure to notify arising from an illegal search. So charges were dismissed.
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IANAL, but I'd say that ruling the search to be illegal strips the cops of their "qualified immunity" in the upcoming civil suit. This may have a happy ending after all.
 
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the fact about the falsified criminal report is part of the evidence that is going to be used to try and get the notification part of the Ohio CHL law rewritten/repealed. as it stands it is ripe for abuse, as was evident in this case. all you have need is some corrupt cop(s) and a non-working dashcam and an innocent citizen is in jail/fined, etc. if it wasn't for the dashcam, Canton's "finest" would have railroaded the guy.

it would be good for the prosecutor to get "Nifong"ed. she was using very dirty tricks that the judge and everyone saw through. she even went to the video playing and turned the volume down during one of the attempts when Bartlett tried to notify. then she went back it turned the volume back up.

the main actor in this fiasco, wasn't even called in as a witness. it was up to his partner to try and lie about the situation.

every case he is involved in from here on out will be suspect if he doesn't lose his job.

according to one of the member of the Ohio CCW group, the court proceedings were recorded. if so, they have him on tape lying on the witness stand and getting caught at it.
 
zxcvbob said:
. . . .IANAL, but I'd say that ruling the search to be illegal strips the cops of their "qualified immunity" in the upcoming civil suit. This may have a happy ending after all.
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That finding, in and of itself, isn't enough to strip them of QI. They only need "arguable probable cause," as opposed to "actual probable cause," in order to retain their QI. Here's the QI rule laid out in Anderson v. Creighton, which is one of the primary QI cases.
SCOTUS said:
Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344–345, 106 S.Ct., at 1097–1098 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984); id., at 198, 104 S.Ct., at 3021 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, 457 U.S., at 819, 102 S.Ct., at 2738. Cf., e.g., Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818, 102 S.Ct., at 2738.

Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987)
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IOW, as long as the officers' conduct was objectively reasonable, or as long as they did not cross a well-established, bright-line rule, they'll be entitled to QI. In this case, as I mentioned above, the fact that the search was ruled illegal probably will not, in and of itself, be enough to strip them of QI. On the other hand, that fact, coupled with the untruthful criminal complaint, may be enough. If the Plaintiff gets a decent lawyer, they shouldn't win their motion to dismiss (assuming one is even filed), and will get the joy of being deposed before the deadline for summary judgment motions rolls around. What they say in depositions may enable the Plaintiff to survive summary judgment and get them to trial (or settlement).

The prosecutor will be entitled to prosecutorial immunity, which is markedly stouter than qualified immunity. It is more along the lines of soveriegn immunity, so the Plaintiff will likely lose as against him or her. Whether or not the prosecutor can be subjected to ethical sanctions is a different question, though.
 
spats I enjoyed your comments on Immunity. You seem to have a legal background so I will ask two questions.

1. The officer admitted that his written stament of the charges was incorrect. Is he chargable for filling a false offical statement? Arkansas had statutes which could result in criminal charges for such an action.

2. does The prosecutors antics during the showing of the video and the use of false statements by the Cops violate the Cannons of the legal profession?

Could the Prosecutor be brought before the ethics board of the state bar?

Implied in my 2nd question is did her conduct rise to the level of an ethics violation?

Thank you
 
1. The officer admitted that his written sta[te]ment of the charges was incorrect. Is he chargable for filling a false offical statement? Arkansas had statutes which could result in criminal charges for such an action.
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Would you mind pointing me to that (link or quote)? I read this earlier and was unable to to find it. Thanks.
 
ltc444 said:
spats I enjoyed your comments on Immunity. You seem to have a legal background so I will ask two questions.
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Thank you. In fact, I do have a legal background. I'm an assistant city attorney.

ltc444 said:
1. The officer admitted that his written stament of the charges was incorrect. Is he chargable for filling a false offical statement? Arkansas had statutes which could result in criminal charges for such an action.
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Most likely, yes. I haven't reviewed Ohio law, but filing a false report is a crime in Arkansas, so I suspect the same is true in Ohio. OTOH, if the document in question was the actual charging instrument (like a ticket or felony information), the crime could be considerably more serious. What we don't know is whether the statement of the charges was "incorrect," or "untruthful." There's a world of difference.

In any case, those two officers just lost all of their credibility with that judge, which will make it very hard for them to win cases for a long time. If they were in my court, I'd be asking their Chief to have a "come to Jesus talk" about the importance of being accurate and truthful in their reports.

ltc444 said:
2. does The prosecutors antics during the showing of the video and the use of false statements by the Cops violate the Cannons of the legal profession?

Could the Prosecutor be brought before the ethics board of the state bar?

Implied in my 2nd question is did her conduct rise to the level of an ethics violation?

Thank you
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I'm going to have to work backwards through those questions. Without reviewing the transcript, or actually seeing what went on, it's very hard to say whether an ethical violation occurred. In theory, a prosecutor's job is to seek justice, not convictions.

That said, the acts of the prosecutor in turning down the volume on the video . . . well, that bothers me. To my mind, it violates the basic rules of "fair play," as it were. If you're going to play the video, fine, play the video. If not, then not. But don't play it, then turn down the volume, and ask questions to distract the jury from hearing part of it. Frankly, I think it's up to the Ohio committee on professional conduct to determine if there's been a violation, but I think this one's worth referring to them for an investigation.

The prosecutor may also have been looking down the road, knowing that these two officers may well get sued. In that case, a conviction on the failure to affirm charge would have foreclosed any suit under 42 USC 1983 based on a claim of unlawful arrest, or illegal search and seizure.

Violation of the rules of professional conduct? Arguably . . . this is where it gets sticky, and one of the things that gets lawyers a bad rep. An attorney is bound by a duty to be candid with the court, and not to knowingly put on false evidence. The question, then, is whether or not the PA knew that the report was untruthful.

As an interesting aside, police reports cannot be used as evidence under Arkansas law. My officers can refer to them on the stand, refresh their memories, and can testify as to what went on . . . but the report will never go into evidence.
 
As an interesting aside, police reports cannot be used as evidence under Arkansas law. My officers can refer to them on the stand, refresh their memories, and can testify as to what went on . . . but the report will never go into evidence.
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According to the blog, the incorrect information was in the actual criminal complaint, not in the police report.
 
Thanks for your posts Spats.

What most bothers me about the PA's actions was the offer he made to Bartlett to drop all charges if Bartlett agreed not to sue the City of Canton. This offer was made within days after Bartletts arrest, after Barlett had got counsel , and long before any thoughts of a trial. I know plea bargains are made almost daily by many PA's but the way this went down, seems more like an attempt at bribery to me rather than a plea bargain.

Got a question for you Spats...

No doubt the PA had revue'd the tape of the arrest and new Harless and his partner had screwed up...Does the PA have the authority to make this kind of deal or should I say bribe? Too, how do you think a judge would look at this ethically?
 
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Offering those kinds of plea deals is not that unusual, especially if the PA is in the same kind of spot that I am in. As an assistant city attorney, I prosecute traffic court and then turn around and defend officers when they get sued.

Now, with that in mind, remember when I said:
Spats McGee said:
The prosecutor may also have been looking down the road, knowing that these two officers may well get sued. In that case, a conviction on the failure to affirm charge would have foreclosed any suit under 42 USC 1983 based on a claim of unlawful arrest, or illegal search and seizure.
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I've never made the "drop charges if you won't sue" deal, but I would if the case called for it. For example, if I had a case with a couple of officers who had arguable (but shaky) probable cause and an angry, litigious-looking defendant, would I sacrifice the $100 traffic court fine for an agreement that the defendant wouldn't slap the officers with a $100K lawsuit? Gladly. It's my job to protect my city and my officers. OTOH, if my officers acted as outrageously as these buttheads did, we'd be having a "come to Jesus" talk, for starters.

Now, with an eye to protecting the officers, and the idea of foreclosing lawsuits in mind, think about this: If the defendant declines the plea deal, I can still shut down some of his lawsuit "avenues" by convicting him at trial. If he's convicted at trial, any claims of illegal arrest, or unlawful search and seizure are over before he ever gets out of the gate.

If the PA is just a prosecutor, and does not defend against civil actions, then the city attorney may have placed a call and asked that the offer be put on the table.

shortwave said:
No doubt the PA had revue'd the tape of the arrest and new Harless and his partner had screwed up...Does the PA have the authority to make this kind of deal or should I say bribe? Too, how do you think a judge would look at this ethically?
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Does the PA have this authority? Yeah, probably. How would the judge look at it? The judge probably won't look at it. Most likely, the judge's only concern is whether the matter is going to trial. In terms of ethics, even if the judge disapproves, his likely action would be to simply refer it to the state ethics commission.
 
All of which just demonstrates why my late great-grandfather, the law professor, was so spot-on when he advised the family to always stay out of court if possible, because "there is no justice in the courts."
 
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