Officer Loses Claim That Indictment Was Illegal Retaliation

Steve Fowler is an African-American officer with the Canton, Ohio Police Department. From time to time, Fowler has spoken out against what he perceives to be racial discrimination in the Department.

On February 1, 2004, the office manager of a law firm filed a complaint with Internal Affairs regarding Fowler’s behavior. The complaint alleged that Fowler had visited the law firm’s offices falsely claiming to be part of the building security force and asking questions about the building’s alarm system.

In a subsequent internal affairs investigation, Fowler contended that he had been trying to locate a woman with whom he had been in a near-miss automobile encounter that morning and that he wanted to warn her about her driving. According to Fowler, he used the Law Enforcement Assembly Data Service (LEADS) system to run the woman’s license plate number to determine her name.

The Department concluded that Fowler had in fact visited the law offices as part of an attempt to meet the woman, whom he had spotted and trailed to the law firm’s building, in an attempt to make a date with her. The investigation also concluded that Fowler had used LEADS improperly, as the use of LEADS is restricted only to law enforcement purposes. Finally, the report concluded that Fowler had repeatedly lied about many of the facts about the incident.

When the Department terminated him, Fowler challenged the action in arbitration. An arbitrator found that Fowler had in fact misused LEADS for purely personal purposes, and converted the termination to a nine-month suspension. Almost immediately, an independent prosecutor obtained an indictment of Fowler before a grand jury.

When the criminal charges against Fowler were dismissed, Fowler filed a federal court lawsuit alleging that the indictment was retaliation for his engaging in the protected activity of speaking out about matters concerning racial discrimination and harassment. A federal court dismissed Fowler’s lawsuit.

The Court found the fault in Fowler’s claims was that “Fowler cannot show that his indictment was caused by the City. Fowler does not deny that an independent prosecutor obtained an indictment of Fowler from a grand jury. A plaintiff may not raise a constitutional claim based on the bringing of an indictment by a properly constituted grand jury. An indictment by a grand jury conclusively establishes probable cause for the indictment. Fowler does not, therefore, establish a prima facie case of retaliation by the City.”

Miller v. City of Canton, 2008 WL 114362 (N.D.Ohio 2008).

This article appears in the April 2008 issue