The Maine attorney general’s office has asked a federal judge to dismiss an ex-police officer’s lawsuit against the Penobscot County district attorney on the same grounds that an appeals court threw out a similar lawsuit in 1992 against the man who was then the county’s top prosecutor.
Both lawsuits involve former police officers who were either fired or put on desk duty after a district attorney refused to prosecute their cases because of concerns that their testimony could be impeached at a trial. Both officers challenged a prosecutor’s ability to put them on a list of unreliable witnesses due to past conduct or suspected misconduct.
In October 1992, a three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston ruled that prosecutors have immunity from lawsuits and the authority to not prosecute a particular officer’s cases.
“Rather, here we face an individualized judgment regarding whether the presence of a particular policeman as investigating officer or otherwise as a witness would burden or compromise the prosecution’s cases,” the appellate court said. “The judgment may be wrongheaded, but it is the prosecutor’s to make….”
That case was filed in 1989 by former Old Town police officer Norman Harrington against R. Christopher Almy, then district attorney for Penobscot and Piscataquis counties, in U.S. District Court in Bangor. The current case, filed by an unnamed former officer against Almy’s successor, is pending in the same court
Harrington, along with many others, was named as one of the people supposedly involved in a sex ring that abused three children in Bangor in the 1980s. He and most of the others on the list were never charged with any crime.
The Old Town Police Department, based on legal advice, ordered Harrington to take a controversial sexual response test to determine if he was attracted to children, according to the Bangor Daily News archives.
Harrington refused to take the test and was suspended from his job. He later was reinstated by an arbitrator, but the legal battle continued for nearly five years, costing Old Town $1.4 million in legal fees plus a $950,000 settlement paid to Harrington after a jury found his constitutional rights had been violated.
Despite Harrington’s reinstatement, Almy refused to prosecute his cases and Harrington was assigned to less desirable desk duties. He left the police force after the appellate court ruled in his favor.
In the new case, the officer, who is not identified in the 61-page complaint, has demanded that District Attorney Lynch remove the information that incorrectly states he stole a knife from evidence and used excessive force as a police officer at a previous job out of state from a database she keeps of officers whose testimony at trial could be impeached by defense lawyers.
The officer claims that Lynch never investigated the allegations she received from his former supervisor, which the supervisor has since recanted. That violated the officer’s constitutional right to due process, according to the complaint.
Neither the police chief who allegedly gave Lynch the false information, nor the Penobscot County department for which the former officer worked are identified in the complaint. The officer is identified in court documents by the pseudonym Roe.
Michael Cunniff, the Portland attorney who represents Roe, is asking U.S. District Judge Lance Walker to rule that Maine police officers are entitled to due process, including meaningful notice of the allegations, when prosecutors deem them potentially unreliable witnesses and decline to prosecute cases involving them. The least a prosecutor should do is give the officer a meaningful opportunity to dispute those allegations before determining that an officer’s alleged previous conduct could be used to impeach his or her testimony at a trial, the complaint said.
Lynch is being defended by Assistant Attorney General Jonathan Bolton. In addition to citing the 1992 decision in his motion to dismiss, Bolton argued that what Roe is seeking “would be an inappropriate judicial incursion into matters long recognized as within the scope of prosecutorial judgment and discretion.”
Bolton also said that because police officers are not at risk of being incarcerated or losing ownership of something by being placed on an unreliable witness list, they have no right under the Constitution to a probable cause hearing.
“Moreover, police officers have no liberty or property interest in criminal discovery processes,” he said in the motion. “They have no liberty or property interest in prosecutors’ charging decisions. They have no liberty or property interest in testifying in court.”
Cunniff disagreed in a statement issued Thursday.
“In addition to the legal principles, the complaint sets out factual allegations that demonstrate what can happen when officers are deprived of the sort of fair treatment that the complaint asks the court to recognize as a Constitutional right,” he said.
“The complaint contends that allowing officers to defend themselves would strengthen, not contradict or obstruct, the obligation of prosecutors to give fair treatment to all parties in the cases that they prosecute. The complaint seeks no more and no less than an opportunity for Officer Roe and similarly situated officers to defend themselves against non-meritorious allegations that affect their ability to pursue their public service.”
The attorney also said Thursday that when the same information given to Lynch was sent to the Maine Criminal Justice Academy, it gave Roe the opportunity to respond to the allegations.
“After hearing his defense against the allegations, the Academy’s Board of Trustees dismissed the allegations made against him,” Cunniff said.
The academy certifies police officers in Maine.
Bolton declined to comment on pending litigation, which is the practice of the attorney general’s office.
The deadline for Cunniff to reply to the motion to dismiss is March 11.