Appeals court dismisses 2017 Hillary lawsuit against Potsdam police; 2012 case withdrawn

Jul. 7—POTSDAM — A 2017 lawsuit filed by Oral "Nick" Hillary against Potsdam Police Chief Mark R. Murray has been dismissed by the Second Circuit Court of Appeals, ending a legal saga that went on for more than 11 years.

There were two lawsuits against the village of Potsdam. A second, filed in 2012, went to a federal trial in June 2022. The jury returned a verdict in favor of the village, Murray and former police chief Edward F. Tischler.

Hillary, a former Clarkson University men's soccer coach, had sued the village of Potsdam and St. Lawrence County in 2017 for alleged selective prosecution for Garrett J. Phillips's murder that happened Oct. 26, 2011, in violation of Hillary's 14th Amendment rights. Hillary had been in a relationship with Garrett's mother, Tandy L. Cyrus, and lived with them for a time. He was charged with the 12-year-old boy's murder in May 2014 and acquitted after a three-week bench trial in September 2016.

The 2017 lawsuit was dismissed on June 26. Hillary alleged the selective prosecution claim based on race, violating the Equal Protection Clause of the 14th Amendment. The case was originally against St. Lawrence County, the district attorney's office, former District Attorney Mary E. Rain, former Sheriff Kevin M. Wells, Tischler, New York State Police and five state police investigators and Onondaga County District Attorney William J. Fitzpatrick, who assisted Rain in prosecuting Hillary. It had been slowly dismissed in parts over six years, leaving Murray as the sole remaining defendant.

To make a successful selective prosecution claim, according to court documents, Hillary's lawyers had to prove two elements. The first is that he, when compared to "others similarly situated," was selectively treated. Hillary, who is Black, contended that Murray called him the sole person suspected of the crime, while a "similarly situated" white man, John E. Jones Jr., was quickly dismissed as a suspect. At the time of the murder, Murray, who is also white, was a Potsdam police lieutenant and lead investigator on the Phillips case. Hillary and Jones, a St. Lawrence County sheriff's deputy, had each previously been in a relationship with Garrett's mother. Hillary contended that many of the reasons cited by Murray that made him a suspect similarly applied to Jones.

The second part for a successful Equal Protection Clause lawsuit that Hillary would have to prove is that the selective treatment was motivated by "intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person."

"Thus, a plaintiff cannot merely rest on a demonstration of different treatment from persons similarly situated and instead, he must prove that the disparate treatment was caused by the impermissible motivation," reads the ruling from Chief Judge Debra Ann Livingstone and circuit judges Beth Robinson and Maria Araújo Kahn.

The judges ruled that Hillary didn't raise "a genuine dispute" that showed his alleged selective treatment was motivated by racial discrimination or intent to inhibit his constitutional rights.

"To show an impermissible motivation, (Hillary) relies on circumstantial evidence about the racial composition of the (Potsdam) police department and the treatment of other Black individuals associated with the homicide investigation and prosecution," the dismissal ruling says. "However, he has not offered any admissible evidence to support that either circumstance was motivated by racial animus or an intent to discriminate. In addition, he has failed to put forth evidence that Murray had a personal motivation to discriminate or that such a motive was a cause of his treatment of Hillary."

The court document goes on to say that Hillary argued being treated differently than Jones, and Murray's explanation for the different treatment means Murray intended to discriminate, but "he cannot rely on different treatment alone," the judges wrote.

"Mere failure to prosecute other offenders is not a basis for a finding of denial of equal protection," the dismissal ruling says, quoting case law from the 1980 case LeClair v. Saunders, which dealt with enforcement of public health laws on dairy farms.

"Moreover, Hillary has not offered sufficient evidence to create a material dispute of fact concerning Murray's purported reason for refraining from investigating Jones personally, to avoid a potential conflict of interest, or concerning Murray's purported reasons for viewing Hillary as a more likely suspect than Jones," the dismissal ruling says. "Thus, Hillary has established no facts to suggest that the disparate treatment was caused by the impermissible motivation. For that reason, summary judgment in favor of Murray was appropriate."

Hillary attorneys had appealed his 2012 lawsuit against the village of Potsdam, Murray and Tischler, after a federal jury ruled in favor of the defendants last year. His legal counsel filed a notice to appeal shortly after the verdict, and then withdrew their intent to appeal with prejudice in January of this year. That means the case is over.

Hillary was represented by Brett H. Klein of New York City and Mani C. Tafari of Melville. The defendants were represented by Gregg T. Johnson and Hannah H. Hage of Clifton Park. Judge Gary L. Sharpe presided over the case at the James T. Foley Courthouse in Albany.

It went in front of a federal jury in U.S. District Court, Northern District of New York, from June 6 to 10, 2022. The jurors decided in favor of Murray and Tischler based on a preponderance of evidence, a lower legal standard of proof than the reasonable doubt required in criminal trials. The village would have been liable in the civil case if Tischler was found liable, who as chief during the early stages of the Phillips murder investigation was an official municipal policymaker. The jury also had the option to find Tischler and Murray not liable, but the village liable.

The Fourth Amendment protects people from unreasonable searches and seizures. Judge Sharpe had limited the scope of the trial to six hours between about 9:38 a.m. and 3:47 p.m. Oct. 26, 2011. The jury had to decide if during that time, Murray and Tischler had enough information that would lead a "reasonable police officer" to detain Hillary on the day in question without a warrant, pending the issuance of one. The judge said the case was "not about who killed Garrett Phillips," but whether police unfairly focused on Hillary as a sole suspect, or police tactics.

Visit wdt.me/M3rTTe to read more about the outcome of the federal civil trial.