YOUNGSTOWN — A court rejected Youngstown’s appeal of a judge’s ruling to dismiss 14 misdemeanor charges of dereliction of duty against Brian Flynn, a former Youngstown police lieutenant.

In a 3-0 decision, the 7th District Court of Appeals ruled arguments raised by the city that visiting Judge Mark Frost’s dismissal of the charges in Youngstown Municipal Court is “without merit,” and Frost’s decision “in this case was the proper remedy.”

Keith Washburn, an attorney for Flynn in this appeal and a staff attorney for Ohio’s Fraternal Order of Police, said the appeals court “made the right decision.”

Adam Buente, the city’s deputy law director, declined to comment.

In a June decision, Frost dismissed the case ruling the Youngstown Law Department failed to prove that it did not use statements obtained in an internal affairs investigation in the later criminal investigation and prosecution of Flynn.

A U.S. Supreme Court ruling — Garrity v. New Jersey — prohibits the use in a criminal matter of any “compelled statement” taken from a public employee during an internal affairs investigation.

“It’s a long-standing precedent that a police officer can be compelled to testify against himself in an internal investigation, but no statements could be used from that in a criminal case,” Washburn said. “It’s the prosecutor’s burden to prove it did not use those statements and they never proved that.”

Flynn was fired in December 2022 after an investigation of allegations that he failed to assign a detective to about 24 referrals from the Ohio Internet Crimes Against Children Task Force involving alleged child abuse and child pornography cases.

Flynn was the head of the Family Investigative Services Unit, now called the Special Victims Unit.

Before his firing, Flynn was on paid administrative leave for more than 20 months.

A separate criminal investigation was conducted by Detective Brian Breeden of the Summit County Sheriff’s Office at the request of Jeff Limbian, then the Youngstown law director. Breeden turned over his investigation to the Youngstown Law Department, which filed the 14 misdemeanor counts in October 2022 in municipal court.

Paul Siegferth, who was Flynn’s attorney in that case, filed a motion to dismiss contending the city prosecutor’s office failed to prove at a May 2023 hearing that no information from the internal affairs investigation was used in the criminal investigation of Flynn.

Breeden testified during a May 2023 hearing that he didn’t consider any of the internal affairs information in his investigation, but Siegferth argued the city failed to prove it didn’t use it. Frost agreed and dismissed the case a month later.

In its decision, the appeals court wrote: “The burden was on the state to prove that it did not use the Garrity materials in its possession. And the state did not offer any evidence to prove this. It only presented evidence that Detective Breeden did not use the Garrity materials in his investigation. The burden was not on Flynn to show that the state used the Garrity materials.”

The appeals court decision also states: “The city law department, at the request of one of its attorneys, was in possession of the IA (internal affairs) binder including the Garrity materials for quite some time.”

The decision states the city “did not offer any evidence, let alone prove, that the Garrity materials were not used by the law department in deciding to file the complaint against Flynn. The Garrity materials were in the possession of the law department for a significant amount of time and the law director is the one who filed the probable cause affidavits to charge Flynn. The state could not explain exactly how long the Garrity materials were with the city law department or how those materials were protected from infiltrating the criminal investigation. In light of these facts, the state had to present evidence demonstrating that it did not use the Garrity material at all in deciding to file charges against Flynn. The burden was on the state and it did not meet this burden.”

Flynn was hired in September as a Poland village police officer.

The city has 45 days to appeal the decision to the Ohio Supreme Court.

Washburn said it was unlikely that the court would accept an appeal if Youngstown seeks one.

Washburn also said Flynn has the option to file a civil lawsuit, but he would have to do that on his own and without the legal representation of the FOP.

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