Judge: No ‘outrageous conduct’ by Aspen officer | AspenTimes.com

Judge: No ‘outrageous conduct’ by Aspen officer

ASPEN – A judge ruled Tuesday that the methods an Aspen police officer used to arrest a man on suspicion of theft did not rise to the level of outrageous conduct.

Pitkin County Judge Erin Fernandez-Ely’s three-page ruling concluded that Officer Jeff Fain’s handling of a case involving stolen sunglasses, which led to the February 2011 arrest of Malachai Mulcahy, 28, of Basalt, “did not violate fundamental fairness, was not shocking and was not outrageous.”

The judge’s order comes after Mulcahy’s defense attorney, Lawson Wills, of Snowmass Village, filed a motion in December to dismiss the misdemeanor charge based on Fain’s alleged misconduct. A hearing on the matter took place in March.

Among Wills’ contentions were that Fain confronted Mulcahy about the theft while the suspect was having Valentine’s Day dinner with a woman and another couple at a downtown sushi restaurant, and the next day “unnecessarily embarrassed” Mulcahy by arresting him after a recreational basketball game at the Aspen High School gym.

Fernandez-Ely wrote, “The officer’s conduct in disturbing the defendant’s Valentine’s Day dinner was inconvenient and embarrassing to the defendant but not outrageous. The defendant could have been arrested or issued a summons right then and there (at the Valentine’s dinner) which would have been even more embarrassing.”

Mulcahy became a suspect in the heist when his supervisors at Koto Aspen, a Hyman Avenue gift shop, told police that he had stolen a pair of $275 Gucci sunglasses. He also confessed to his co-workers that he took the glasses, police said.

Mulcahy, however, had pleaded not guilty to the charge. And Wills had argued that not only had Fain been overzealous in his pursuit of Mulcahy, but he violated an administrative order in Pitkin County Court that says any person arrested in the county “on misdemeanor, petty or traffic charges shall be released by service of summon to appear without bond.”

After Fain arrested Mulcahy, he set a $500 bond. Instead, Mulcahy should have been simply summonsed and released, Wills said, basing his argument on the court’s administrative order.

But Fernandez-Ely sided with prosecutor Richard Nedlin’s contention that the bond was proper. That’s because Mulcahy failed to appear for a 2005 traffic-court hearing for driving under revocation, the judge wrote. Because of Mulcahy’s no-show, Fain’s issuance of the bond did not violate the administrative order, though he should have given a reason for the bond in writing, which he did not, the judge noted.


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