Coffy v. Multi-County Narcotics Bureau

• Decision Date: 19 June 1979
• Docket Number: Nos. 77-3603,MULTI-COUNTY,77-3604 and 77-3279,s. 77-3603
• Citation: 600 F.2d 570
• Parties: Thomas COFFY and Kenneth Bower, Plaintiffs-Appellants and Cross-Appellees, v.NARCOTICS BUREAU, Allen Laird, Kenneth Beamer, Robert J. Wilson, Phil Dennis, Ronald Collins, Barry Terjesen, Defendants-Appellees and Cross- Appellants. Thomas COFFY and Kenneth Bower, Plaintiffs-Appellants, v. Judge Harlan R. SPIES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 570

600 F.2d 570

Thomas COFFY and Kenneth Bower, Plaintiffs-Appellants and Cross-Appellees, v. MULTI-COUNTY NARCOTICS BUREAU, Allen Laird, Kenneth Beamer, Robert J. Wilson, Phil Dennis, Ronald Collins, Barry Terjesen, Defendants-Appellees and

Cross- Appellants.

Thomas COFFY and Kenneth Bower, Plaintiffs-Appellants, v. Judge Harlan R. SPIES, Defendant-Appellee.

Nos. 77-3603, 77-3604 and 77-3279.

United States Court of Appeals Sixth Circuit.

Argued Feb. 19, 1979.

Decided June 19, 1979.

Kenneth P. Frankel, Smith & Smith, Avon Lake, Ohio, for plaintiffs-appellants.

William A. Kyler, Smith, Renner, Hanhart, Miller & Kyler, New Philadelphia, Ohio, for Multi-County Narcotics Bureau.

Thomas A. Dugan, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, for Coffy in No. 77-3603 and Multi-County, Wilson, Dennis in No. 77-3604.

Gary A. Banas, Steven E. Sigalow, Akron, Ohio, for Terjesen, Collins.

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This action grew out of an investigation into violations of Ohio's dangerous drug laws at Magnacca's Lounge (Magnacca's), a tavern located in the Village of Roswell, Ohio. As the result of a nine month investigation, Thomas Coffy and Kenneth Bower, proprietors of Magnacca's, were indicted, prosecuted and convicted of maintaining a common nuisance in violation of Ohio law. On appeal, their convictions were vacated and the case remanded to the state trial court. Coffy and Bower were not retried upon remand.

Coffy and Bower commenced the present action under 42 U.S.C. § 1983 against the parties who participated in the Magnacca's investigation and prosecution, alleging that they had been deprived of their civil rights in violation of the Constitution and laws of the United States.

The parties named as defendants in the action included: the Multi-County Narcotics Bureau (the Bureau), a specialized narcotics law enforcement agency; Allen Laird, Administrative Director of the Bureau; Kenneth Beamer, Deputy Director of the Bureau; Robert J. Wilson, Special Agent of the Bureau; Phil Dennis, an informant used by Wilson in his undercover investigation at Magnacca's; Ronald Collins, Prosecuting Attorney for Tuscarawas County, Ohio; Barry Terjesen, Assistant County Prosecutor and trial counsel for the state in the Coffy-Bower nuisance trial; and Harlan R. Spies, Judge of the Common Pleas Court, Tuscarawas County, Ohio, who presided over the common nuisance trial. In addition, the Tuscarawas County Sheriff's Department; Louis J. Clark, Sheriff; and William Winters, Dale Bayer and William Haney, Commissioners of Tuscarawas County, were named as defendants in the action. They subsequently were dismissed from the action by consent of the parties.

Following multiple pre-trial motions, the district court granted summary judgment in favor of Judge Spies and attorneys Collins and Terjesen. Trial of the action against the remaining defendants commenced on June 17, 1977, and concluded on June 21, 1977, resulting in jury verdicts against the Bureau, Laird and Beamer but in favor of Wilson and Dennis. Thereafter, the district court granted judgment n. o. v. in favor of the Bureau. Both sides have appealed.

We hold that the plaintiffs are not entitled to a recovery against any of the defendants. Accordingly, we affirm in part and reverse in part the judgments of the district court.

I

The Multi-County Narcotics Bureau was created in 1972 by a grant from the Law Enforcement Assistance Administration (LEAA). The Bureau operated within a six county area and received federal, county, city and village funding. Testimony at trial established that the Bureau is no longer in existence. Funding for the Bureau terminated in December 1975.

The Bureau was composed of a twelve member Board of Control. Each county within the Bureau's jurisdiction was represented by two members of the Board. Allen Laird was the Administrative Director of the Bureau. Laird's duties included reporting the activities of the Bureau to the Board of Control, as well as directing administrative activities within the Bureau. Kenneth Beamer was Deputy Director and Director of Operations for the Bureau. Beamer had overall responsibility for initiating and directing the activities of the special agents employed within the Bureau.

The Bureau was charged with investigating possible violations of Ohio's narcotics and dangerous drug laws. Its special agents conducted undercover investigations in an effort to gather evidence and apprehend individuals involved in illicit drug transactions. As a part of the Bureau's ongoing operations, Beamer, with the knowledge of Laird, assigned Special Agent Robert Wilson to investigate possible drug trafficking at Magnacca's. This investigation commenced in October 1974 and culminated in indictments against 12 persons, including Coffy and Bower, on various drug related charges.

Phil Dennis, a suspected drug dealer who cooperated with the Bureau, was utilized as a source of contacts in the undercover investigation. The jury rendered a verdict in favor of Dennis. Coffy and Bower do not appeal this portion of the verdict. Dennis introduced Wilson to various individuals known by Dennis to have "dealt in drugs." Wilson would then attempt to ingratiate himself with "that particular peer group . . . and then after you were accepted, purchases of drugs could be made." Over the period of his investigation, Wilson made approximately 15 buys from ten different individuals in or on the premises of Magnacca's.

The entire investigation at Magnacca's was conducted as an undercover operation. Wilson did not inform Coffy or Bower of his true identity, nor did he, or anyone associated with the investigation, disclose to them the nature and purpose of the Bureau's activities at Magnacca's. At one point in the investigation Wilson approached Coffy and solicited him, asking "if there was anything for sale."

In June 1975, Deputy Director Beamer and Special Agent Wilson met with Ronald Collins, Prosecuting Attorney for Tuscarawas County, Ohio, and Assistant Prosecutor Barry Terjesen for the purpose of turning over to them the results of Wilson's investigation. Wilson explained his method of operation to the prosecutors and provided them with a written report listing a number of drug offenses. After consultation between the agents and the prosecutors, Collins determined there was sufficient evidence to bring the matter before the next session of the Tuscarawas County Grand Jury. ¹

Terjesen served as prosecuting attorney in presenting the results of the Wilson investigation before the Grand Jury. Wilson testified before the Grand Jury concerning his activities during the Magnacca's investigation. On June 13, 1975, the Grand Jury returned an indictment charging Coffy and Bower with maintaining a common nuisance in violation of former Ohio Rev. Code § 3719.46. Ten other individuals were also indicted on drug charges stemming from the Magnacca's investigation. Nine of these individuals pleaded guilty or were found guilty on the charges. One individual was at large at the time of the trial in the district court.

Prior to the Coffy-Bower nuisance trial in Common Pleas Court, Amended House Bill No. 300 (H.B. 300) was enacted by the Ohio State Legislature and signed into law. H.B. 300 made a number of changes in Ohio's dangerous drug laws. Although the Act became effective July 1, 1976, the penalty provisions of the Act were put into effect on November 21, 1975. Section 3 of H.B. 300 provided, in pertinent part:

Any person charged . . . for an offense under existing law that would not be an offense on the effective date specified in § 4 of the Act (July 1, 1976) shall have charges dismissed. . . . Any person charged with an offense committed prior to (July 1, 1976) that shall be an offense under this Act shall be prosecuted under the law as it existed at the time the offense was committed and any person convicted . . . for an offense under existing law that would be an offense on (July 1, 1976) but entail a lesser penalty than the penalty provided for the offense under existing law shall be sentenced according to the penalties provided in this Act. . . . ²

Coffy and Bower filed a pre-trial motion to dismiss the indictment on the ground that the offense charged was no longer a crime under H.B. 300. Terjesen, however, opposed dismissal and Judge Spies denied the motion and ordered the case to proceed to trial.

On December 3, 1975, Coffy and Bower filed an Affidavit of Prejudice against Judge Spies, which he forwarded to the Court of Appeals for Ohio's Fifth Appellate District. On December 9, 1975, trial on the nuisance charge commenced. Coffy and Bower were convicted by a jury of violating former Ohio Rev. Code § 3719.46 and each was sentenced to six months in jail together with a fine of $750.00, under provisions of H.B. 300, Ohio Rev. Code § 2925.13. Magnacca's was subsequently ordered closed by an order of abatement issued pursuant to Ohio Rev. Code § 3767.06. ³ Both sentences and the order of abatement were stayed pending appeal. ⁴

On appeal, the Ohio Court of Appeals for the Fifth Appellate District, Tuscarawas, Ohio, vacated the convictions and remanded the action to the Common Pleas Court on the ground the trial judge improperly ruled on the Affidavit of Prejudice. ⁵ Following remand, the County Prosecutor elected not to retry Coffy and Bower.

II

Coffy and Bower commenced the present civil rights action on November 18, 1976. Jurisdiction was predicated upon 42 U.S.C. § 1983. In substance, Coffy and Bower complained that the defendants intentionally and maliciously had "caused" drug trafficking to occur at Magnacca's; "caused" their indictment, arrest, prosecution and conviction of a nonexistent crime; closed their place of business; injured their reputations; invaded their privacy; and caused them emotional distress and...