
    Bertram, Appellant, v. Richards et al., Appellees.
    No. 2135
    — Decided February 13, 1974.)
    
      Mr. Robert J. Swan and Mr. Harvey H. Creighton, for appellant.
    
      Mr. William J. Brown and Mr. Leo J. Conway,-lor appellee Nicholas R. Curci. , . ■
    
      Mr. Joseph R. Grunda, prosecuting attorney, and Mr. John J. Lowtherytov appellees Sally Richards et al.
    
      Mr. John Otero, for appellee Glenn V. Shaw. .: .
   Mahoney, J.

¡Plaintiff Richard Bertram, the appellant, is a student at Kent State University and a musician by trade; he was hired to provide entertainment in a night spot near the city of Elyria, called “Pandora’s Box.”: He arrived there at about 8 p.m., on Saturday, Febuary 20, 1971, and was just “setting-up’.’.when the place was raided by deputies of . the Sheriff of Lorain County. They were assisted by undercover, agents, on drug abuse, of the. AD torney General’s office, and were accompanied by an Assistant Attorney General, the Prosecuting Attorney of Lorain County, and two of his assistants. The drug raid produced a large quantity of drugs in., various forms and containers. ' >

The plaintiff had removed a winter jacket he .was wearing, and an officer noticed a bottle labeled “Dristan” protruding from a pocket of the jacket. Plaintiff admitted ownership of the ¡jacket. He was arrested by the. law enforcement, officers and deposited in the Lorain County jail. The “Dristan” was analyzed and found to be “Dristan,” a patent medicine cold remedy, in capsule form. Bertram was released around 9 a.m., on . Monday, Febuary 22, 1971, Before discharge, he allegedly executed a release of all claims in favor of the Sheriff and his deputies.

There was no charge filed, at any time, against the plaintiff; he was never brought before any magistrate; and nó bond was set for him. He was permitted to make one telephone call. " :

In the raid, over-all, some sixty persons were detained for varying periods of time. Seventeen persons have been convicted of drug related offenses. However, no charge has ever been brought against the plaintiff..

On February 15, 1972, the plaintiff commenced this action in the. Court, of CommonPleas, against the Assistant Attorney General; the Prosecuting Attorney of Lorain County,, and two of his assistants; and the Sheriff of Lorain County and nine of his deputies. J .

. The amended complaint seeks damages for false arrest, false imprisonment, and for. denial of his statutory and constitutional rights. Answers,were filed, and then motions for summary judgment. The trial court granted the several motions for summary judgment as to all of the defendants. From those orders, this áppeai has been timely filed. ..

. Plaintiff, as his sole assigmnent of error, states that the trial court erred “in : sustaining .motions for summary judgment oh behalf of all defendants.”.

The • motion of Nicholas Curei, Assistant Attorney General,; for summary judgment,. was supported by his affidavit, and the affidavit of two other persons, indicating that Curei had been assigned to render assistance to the Sheriff. While Curei helped plan, and organize the raid, he denies taldng part in the arrést or detention of anyone, and asserts that he was acting as an observer and in an.advisory capacity. His motion is predicated upon prosecutorial .immunity, and he says that there is. no genuine issue of fact.

“ :Thé,mótion..of the other defendants for summary judgment -also ..alleges 'that.’ theré. is, no ..genuine issue of fact. The prosecutors seek dismissal of the complaint on the basis of immunity, and the deputies claim that they acted within the scope of their duties and upon probable cause. The deputies, as an additional defense, recite the release , of all claims. The affidavits of Prosecutor Grunda, and his assistants, Harris and Horvath, deny that they acted in any way. other than as observers and in an advisory capacity; they assert that they did not direct, cause, or assist in the arrest of the plaintiff. The affidavits of all of the deputies set forth their respective duties in the raid, and the subsequent detention, and each denies that he or she personally, arrested the plaintiff.

The affidavit of the plaintiff does not assert any facts to show that the Prosecuting Attorney, and his assistants, and the Assistant Attorney General, acted in any way other than as observers or in an advisory capacity.

Plaintiff, in his affidavit, does say that he “talked to a member of the Attorney General’s office at the time of his apprehension, which individual he believes to be the defendant Curci, and that this conversation clearly indicated that Mr. Curci was involved in the raid, apprehensions, arrests and/or detentions * * Such allegations can hardly be considered as facts, predicated upon personal knowledge and admissible in. evidence. This violates Civ. R. 56(E).

The affidavit of plaintiff’s attorney, Robert Swan, cannot be considered since it is not based upon personal knowledge that is required by Civ. R. 56 (E).

Plaintiff’s affidavit does raise and place in issue- ail of those facts which go to the question of probable cause a,s to the actions of the Sheriff and his deputies. The affi-* davit also places in issue the validity of the so-called release. Even if one were to ignore the lack of consideration, and disregard public policy, there certainly are questions of fact as to its exculpatory nature, and whether it was signed or printed under duress or threats. 1 ’

It has long been recognized that a prosecuting attorney or an attorney general is a quasi-judicial officer and enjoys the same immunity from a civil action as that which protects a judge. Kennedy v. Fox (C. A. 6, 1956), 232 F. 2d 288 (cert. denied sub nom. Kenney v. Killian, 352 U. S. 855); Phillips v. Singletary (D. S. C. 1972), 350 Fed. Supp. 297; Yaselli v. Goff (C. A. 2, 1926), 12 F. 2d 396; and Bauers v. Heisel (C. A. 3, 1966), 361 F. 2d 581.

. However, if .the prosecuting' attorney stops, acting in a quasi-judicial capacity and; begins functioning as a policeman, he loses that immunity. Robichaud v. Ronan (C. A. 9, 1965), 351 F. 2d 533; Lewis v. Brautigan (C. A. 5, 1955), 227 F. 2d 124. As long as the prosecuting attorney maintains his' role of observer or adviser, he will not lose that immunity, even if he accompanies a police officer. Boyd v. Huffman (1972), 32 Ohio Misc. 77.

..Police officers or deputy sheriffs do not enjoy an immunity from civil actions, for damages. The law holds the police officer to a standard :of good faithj and a .showing that he acted upon probable cause.; Pierson v. Ray (1967), 386 U. S. 547; Bivens v. Six Unknown Agents (C. A. 2, 1972), 456 F. 2d 1339; and Reinhard v. City (1892), 49 Ohio St. 257.

;'. ■ We conclude, therefore, that there are no genuine, issued of fact as to defendants Nicholas B, Curci, Joseph R. Grunda, Floyd Harris, and Frank Horvath. The. plaintiff has -.failed to pierce their cloak of immunity and they were entitled to. summary judgment, upon their motions.

There are, however, issues of fact upon the question of, probable cause .and the alleged release as to defendants Sally Richards, Andrew Doychak, Thomas, Richards, .Vernon M. Smith, Mary Lou Bulger, Charles Bulger,. Henry Zieba* .David Philion, Richard Zappa, and Glenn V. Shaw. They, are, therefore, not entitled to summary judgment, and the. trial court .erred in granting them such judgment, .

,-The judgment..'of the trial court.is. affirmed as:.to. the defendants Curci, Grunda, Harris, and. Horvath. As to tjxe remaining .defendants. ..the judgment-is. reversed,: and this matter is remanded'to. the trial court for further , proceedings, as provided by law, in. accordance with, this opinion,

- ’ / ' 1 Judgnieht affirmed in part arid reversed in part, , cmd causé remanded. ' ",

. Brenneman; P. J., and Victor, J., concur.  