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Further thoughts on the Canton shocker
The fellows lawyer posts on Ohioans for Concealed Carry that the City offered to drop charges if he'd give them a waiver of liability, he refused, and they of course had to drop charges anyway. (scroll down to July 13 posting: " At the first pretrial, the prosecutor offered to dismiss all charges for a release of liability (promise they wouldnt be sued). I refused their offer")
1. I'd think they would have skipped that offer, since it sounds uncommonly like extortion to me. We will drop criminal charges if you give us something of monetary value....
2. In a §1983 claim, the person who violated rights is of course liable. The problem is always with proving liability of the City or other governmental unit. The ordinary respondeat superior (the principal is liable for the acts of his agent) doesn't apply, you have to show that the city itself did something that makes it liable. This usually takes the form of arguing insufficient training, or an extensive list of violations so long that violating a right becomes unwritten policy. (And the loss rate here is high). Or ratification -- the city did something that retroactively endorsed the violation, essentially. If you give your agent a bonus for his illegal acts, or a commendation, then you become liable for them.
I wonder if the city's plea offer isn't ratification of the violation. The arrest was the officer's problem, but the prosecution is theirs. They demand something of value from the victim -- specifically, a release from liability for the officer and the city -- as a price for their dismissing. The principal has used its power in order to protect its agent from liability for wrongdoing.
Comments
It makes sense they would bargain for immunity from perceived fault, of course with a "heads I win, tails you are nowhere" attitude. No matter how clearly they are in the wrong, anyone who complains is a hinderance to their orderly operations and need neutralization so time/money can be spent on more "rewarding" things, like pensions. Not that the private sector is immune from this kind of self-centered indifference, but the idea the government is somehow poulated with more "better" people is really taking a beating these days. Rightfully so...
Posted by: Harry Schell at July 21, 2011 03:24 PM
Holy crap this is horrific! Not only should all the perps be thrown in prison for life without parole, they should have all their assets seized and pensions transferred to the victim.
Posted by: JR at July 21, 2011 05:27 PM
I tried to comment yesterday informing you I made a post and linked to yours. I will be updating it with a link to this one also.
Josh
Posted by: Josh A. Kruschke at July 21, 2011 06:26 PM
Another scummy tactic used to lower the payout: the City threatens to NOT indemnify the officer. Happened to someone I know.
Posted by: DML at July 21, 2011 07:44 PM
Apparently this is getting national coverage. Its now on Fox's homepage and is making radio and TV news everywhere. I guess, for some reason, it gets people's attention when a cop says he will "execute" you, his partner will lie to cover him, and it will be all good.
Its good that it makes news, because that means it is not normal or common behavior. Its reassuring to see that people are shocked by this, as they should be.
What amazes me the most, though, is that the officer left the camera running! Apparently he didn't think twice about his behavior, and that's a problem.
Posted by: Jim at July 22, 2011 11:30 AM
Some provisions of the Rules of Professional Conduct ought to be relevant for the attorney/prosecutor in this case.
For example, the rule against threatening criminal prosecution to gain an advantage in a civil case; by analogy, the rule against a lawyer seeking an agreement with anyone that they will refrain from filing an ethics complaint; and the catch all rule against any dishonest conduct reflecting on the lawyer’s fitness to practice law.
An extortionist threat should fall under that last one. Added to these is the notion that a prosecutor is supposed to do justice, not just pursue convictions.
That one has pretty much become a joke. Especially with so many cases similar to Pottawattamie County v. McGhee where prosecutors actually framed the defendant with evidence they knew to be false.
Posted by: TeeJaw at July 23, 2011 11:55 AM
Wouldn't FRE 408 prohibit introduction of evidence of the city's plea offer?
Anyway, I am glad this is getting coverage.
Posted by: Alex at July 24, 2011 08:44 AM