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Police vindicated in civil-rights suit
(by Joseph Koziol Jr. - September 03, 2009)
Police vindicated in civil-rights suit
By JOSEPH KOZIOL JR.
On May 1, 2008, a Hambden Township man was detained by Chardon city police after his ex-wife reported that he was at a school track meet in violation of a protection order.
Police referred Robert Buhlman to the police prosecutor's office for charges. No protection order was in effect, but a "no-contact" order was, according to the prosecutor, who determined that Mr. Buhlman had not violated the order.
"Mr. Buhlman was not causing a disturbance nor interfering with Ms. Mondello," Prosecutor Dennis Coyne said of Mr. Buhlman's ex-wife, Marci Mondello. "There is not a chance on God's green earth a jury would find Mr. Buhlman in violation of this protection order."
Mr. Buhlman followed that experience with a civil lawsuit in Geauga County Common Pleas Court on July 24, charging police with violating his civil rights and his ex-wife for malicious prosecution.
In August, Common Pleas Court Judge David Fuhry found that police and Ms. Mondello were within their rights in how they handled the situation.
"The importance of the misapprehension is that the 'no contact' was in effect on May 1, 2008," Mr. Fuhry said. "While Mondello had no right to claim plaintiff (Mr. Buhlman) violated the protection order on May 1, 2008, she still was within her rights to claim that plaintiff had violated an order pertaining to plaintiff's having contact with her. Whether she was mistaken as to which order gave her the right to be free of contact from plaintiff is of no consequence."
Mr. Fuhry also cleared police of any wrongdoing, despite being told they were handling a possible protection order violation, rather than a no-contact order.
"There can be no serious dispute that the defendants had a right to make a 'Terry' style stop and an attendant limited inquiry," Mr. Fuhry said. "The police had sufficient facts of a crime (violation of a protection order) occurring at Chardon High School at the time they got the call on May 1, 2008, to justify a Terry seizure."
A "Terry" stop is a term used to describe a ruling by the U.S. Supreme court, allowing an officer to detain a person believed to have committed a crime or about to do so.
Mr. Fuhry said the officer's mistake may have been appropriate to raise in a criminal trial but not a civil one.
Mr. Fuhry said police were within their rights to order Mr. Buhlman from the stands and to leave the area.
"In this case, there were coercive elements present," Mr. Fuhry said. "More than one officer was involved. The plaintiff was obviously a suspect and knew it. Plaintiff was allegedly told to come out of the stands under the threat of arrest. Plaintiff was taken to different locations on the grounds, albeit not to a police station. Plaintiff was not told he was free to leave. Plaintiff was kicked out of the event and off the grounds entirely."
But, because he was not told he was under arrest, physically touched by officers, cuffed, locked in the police cruiser or booked, the issue of whether he was arrested was "ambiguous," according to the ruling.
"Regardless of whether or not probable cause existed, the defendants (police) are entitled to immunity from civil liability," Mr. Fuhry said. "This is because reasonable officers could have believed that probable cause existed such that a warrantless arrest was justified. Where reasonable officers could disagree as to evidence of probable cause, qualified immunity attaches."
To overcome the immunity, Mr. Fuhry said, Mr. Buhlman would have to show that officers' actions or omissions were "with malicious purpose, in bad faith, or were conducted in a wanton or reckless manner.
"The court finds no evidence or such intent or conduct."
Mr. Fuhry also cleared Ms. Mondello in the case, citing a 2007 case involving an appellate court decision. "The person instituting the criminal proceeding is not bound to have evidence sufficient to ensure a conviction, but is required to have evidence sufficient to justify an honest belief of the guilt of the accused," he said, citing the case.
"Where is the evidence of an ulterior purpose?" Mr. Fuhry asked. "Plaintiff seems to feel Mondello's 'I gotcha' tone of voice on the 911 tapes is evidence. Or that pictures of her smiling taken about the time of the incident can support an inference of an improper motive.
"It is true that Mondello has 'cried wolf' in the past only to ignore a court order restraining both parties from having any contact with one another. For instance, on Aug. 28, 2006, the domestic relations court issued a 'no-contact' order. Despite this, the parties continued their relationship and on Sept. 16, 2006, actually spent the night with each other at a hotel."
Mr. Fuhry said, even if Ms. Mondello did not act with the best intentions, she cannot be held liable in this case.
"Mondello was not seeking to gain any advantage in a collateral matter even assuming her only intention was to punish her ex-husband," he said. "Even if her subjective intent was to punish her ex-husband, her report to police still involved what appeared to be a good-faith report that plaintiff was breaking the law.
"This is because a citizen should never be subjected to possible civil liability for reporting a crime which reasonably appears to them to be occurring. This is true even where the citizen's subjective motive is less to stop the crime than it is to punish the offender."
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