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False-arrest aspect of Wilson case seen as hard row to hoe in lawsuits

Wilson High School's baseball coaches may have a difficult legal hill to climb in their planned false-arrest lawsuits against the State Police and the City of Lockport.

Two prominent local attorneys who have won false-arrest suits, but who are not connected with these cases, said it doesn't matter that the charges against Thomas J. Baia and William M. Atlas eventually were dropped.

The attorneys said the winning standard is whether police had probable cause to make an arrest, based on accusations they considered believable at the time.

Baia and Atlas were charged with endangering the welfare of a child for allegedly failing to prevent assaults by varsity players on junior varsity players during a team bus ride April 17, 2008. The incident resulted in the arrest of three players, one of whom pleaded guilty to child endangerment. The other two were acquitted.

"The police are authorized to make an arrest if a credible complainant comes forward," attorney James M. Ostrowski said.

"If there's probable cause, the police officer has a right, as well as a duty, to make the arrest," said attorney David G. Jay. "The police officer has 100 percent immunity."

Jay said that's true even if the accuser's allegations later turn out to be completely bogus.

"Suing a police agency doesn't work unless the police agency messed up," Jay said.

Mike Paul, spokesman for the coaches, said they believe that's exactly what happened.

"The law is still the law, and the rules are still the rules, and the rules were broken," Paul contends.

The State Police, prompted by Paul's complaints, conducted an internal investigation into how the Wilson case was handled, and reported July 9 that it found no wrongdoing.

State Police Chief Inspector Col. Anthony G. Ellis said at the time, "All investigative and police actions concerning this matter were in accordance with State Police rules and regulations. . . . State Police investigators conducted a thorough and complete investigation into the Wilson hazing allegations. The arrests which followed were based on probable cause."

The Niagara County district attorney's office dropped the charges against Baia and Atlas on July 6, the day their trial was to have begun. District Attorney Michael J. Violante has consistently refused to explain why he made that decision.

Although Paul has hinted the coaches might sue the district attorney for malicious prosecution, that hasn't happened so far.

"Prosecutors are basically immune from suits for the decision to prosecute," Ostrowski said, adding that it could be different if the prosecutor steps into the role of investigator.

Paul said that's what happened with Lockport Police Officer Michael J. Stover's statement to the DA's office in August 2008, reporting allegations of hazing on the Wilson baseball team in 2007. That statement was three months after Baia and Atlas were arrested.

"In order to win for malicious prosecution, you have to have prevailed, and you have to prevail on the merits," Ostrowski said. "Dismissal in the interest of justice is a problem for a malicious-prosecution case. What you ideally want is an acquittal. Anything other than that may not be winning on the merits. Sometimes, they're just giving you a break."

The State Police say Lockport police played no role in the Wilson investigation, but Stover, whose girlfriend is the mother of a former Wilson JV baseball player who said he was bullied in 2007, became involved in his private capacity.

Paul said that because Stover identified himself as a police officer in his statement, the city is liable.

The city disagrees, and Corporation Counsel John J. Ottaviano said the city might be able to establish that during a mandatory hearing before the formal lawsuit is filed.

The hearing, generally held in private in an attorney's office, will compel Baia and Atlas to give a deposition under oath. State Police attorneys will get to depose the coaches, too.

Paul said the coaches "feel very confident" about that process.

e-mail: tprohaska@buffnews.com

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