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June 25, 1986

DISTRICT OF COLUMBIA, et al., Defendants

The opinion of the court was delivered by: HOGAN


 The plaintiff, James A. Hairston, is a career member of the District of Columbia Metropolitan Police Department ("MPD" or "Department"). He filed this action seeking monetary, declaratory and injunctive relief, claiming that the District of Columbia, Mayor Marion Barry, Captain Maurice Turner of the D.C. Police Department, and four other government officials violated his rights under 42 U.S.C. §§ 1983, 1985, and the Fourteenth Amendment. Plaintiff also seeks an award of attorneys fees under 42 U.S.C. § 1988 and asserts a pendent state law claim for intentional infliction of emotional distress. Defendants filed a motion to dismiss the complaint. Because the parties relied on matters outside the pleadings, the Court elected to treat the motion as one for summary judgment, and ordered the parties to supplement their filings accordingly.


 On October 12, 1981, while working at his off-duty job, plaintiff shot and killed Adam Tyree Boyd, Sr. in the course of an altercation. Plaintiff's allegations in the present suit stem from the various administrative actions taken by the Police Department in connection with the shooting.

 Initially, plaintiff requested administrative sick leave for a performance-of-duty injury in October of 1981 based on the injuries inflicted by Boyd. "Administrative" sick leave is to be distinguished from regular sick leave: the former is not chargeable to an officer's annual allotment of paid sick leave, and thus can ensure economic security for a long period of time to officers injured in the line of duty. E.g., D.C. Code § 1-613.1(j); MPD General Order 1001, Def. Exh. P. The Department denied his request on December 18, 1981, determining that the injuries were not incurred in the performance of duty and informing him of his right to appeal. Def. Exh. B. Plaintiff's appeal was acknowledged on January 28, 1982, but no hearing was scheduled until October 4, 1985, allegedly because of the ongoing criminal proceedings. Def. Exh. D, E. Plaintiff received written and oral notice of the October hearing of his appeal, but did not attend the hearing, thinking that it pertained to a later request for leave. See Pltf. Exh. 1; 3. The original denial, based on the non-duty-related nature of plaintiff's injuries, was affirmed, and no appeal was taken. Pltf. Exh. 4.

 In May of 1982, Adam Boyd's widow brought a wrongful death action in District of Columbia Superior Court against the District of Columbia and James Hairston. District of Columbia Corporation Counsel declined to represent Hairston in this civil action, reasoning that the possibly inconsistent defenses raised by Hairston and the District created a conflict of interest. Pltf. Exh. 15; 16. Plaintiff contends that section 4-143 of the District of Columbia Code guarantees this representation, or at least requires payment of attorneys fees in connection with his defense. *fn1" To date, no attorneys fees have been paid, and the case is still pending in Superior Court.

 On January 23, 1983 plaintiff was indicted in D.C. Superior Court in the death of Adam Boyd for Voluntary Manslaughter While Armed. The first trial of this matter ended in a mistrial, on June 16, 1984. Following a second trial, plaintiff was acquitted on September 19, 1984. Plaintiff had been suspended from work without pay by order of defendant Chief Turner on March 31, 1983, pending the outcome of the criminal matter. Such suspension is authorized under D.C. Code § 4-117, which gives the Mayor the authority to "fine, suspend with or without pay, and dismiss any officer . . . [of the] police force for any offense against the laws of the United States or the laws and ordinances or regulations of the District of Columbia, whether before or after conviction thereof in any court or courts . . . ." Plaintiff received the proposed notice of suspension on February 24, 1983, and exercised his right to reply with the aid of counsel. Def. Exh. H; I. The Department's final decision issued March 31, 1983, suspending plaintiff as of April 13, 1983. Def. Exh. I. The notice informed plaintiff of his right to appeal the decision to the Office of Employee Appeals, within 15 days, Def. Exh. I, pursuant to the procedural protection provided in Article 13 of the Labor Agreement between the District and the MPD. Def. Exh. Q, Art. 13, § 8. See also D.C. Code § 1-617.3(d). An adverse decision by OEA would have been appealable to the District of Columbia Superior Court. D.C. Code § 1-606.3(d) (1981). Plaintiff did not appeal his suspension to OEA within 15 days.

 On September 21, 1984, plaintiff was reinstated pursuant to Article 13, § 11 of the Labor Agreement then in force. Def. Exh. Q. Plaintiff's request for back pay for the period of March 31, 1983 to September 20, 1984 was denied by Captain Turner on October 19, 1984, pursuant to department policy. *fn2" Pltf. Exh. 8. Plaintiff's appeal of this decision, filed on October 23, 1984, is presently pending before OEA.

 Plaintiff's final contentions involve the administrative review of his service weapon use in the shooting of Adam Boyd. Police use of service weapons is subject to a two-step administrative investigation to ensure conformance with MPD regulations. See MPD General Order 901.1, Def. Exh. J. Each incident is subject to an immediate preliminary investigation, and a subsequent, more thorough administrative investigation. Id. The findings are forwarded to the Chief of Police, and must include any recommendations for disciplinary action, if appropriate. Id., Part III. The Chief then may refer the incident to the Use of Service Weapon Review Board ("USWRB") for a recommendation of whether adverse action should be taken. MPD General Order 201.7, Part I-A.4, Def. Exh. L. Adverse findings may be appealed to the Appeals Board. Id., Part I-F. Officers have a right to appear before the USWRB and the Appeals Board, and the resultant findings are to be submitted to the Chief of Police once the appeal is resolved. Membership of the Board is established by the General Order. If the Board recommends adverse action, and the Chief of Police concurs, no action may be taken until written charges are issued by the Chief and the matter is heard by a Police Trial Board. D.C. Code §§ 4-117,-118; Def. Exh. O. Trial Board findings may be appealed to the Mayor, id., and thence to the OEA and Superior Court. D.C. Code § 1-606.3.

 The initial investigative report issued October 13, 1981, by the Police Department, Sixth District, recommended a finding that plaintiff's use of his gun was justified. Once plaintiff was indicted, the administrative investigation was stayed, and did not resume until his acquittal in late September, 1984. The administrative investigative report was completed and sent to Chief Turner along with the initial report on December 10, 1984. On February 6, 1985, the USWRB convened at Chief Turner's request to review the reports and to make a recommendation to the Chief of Police regarding plaintiff's use of his weapon. Def. Exh. L. Plaintiff had not received notice of this meeting and the Appeals Board vacated the USWRB's findings, setting a second meeting for March 27, 1985. Def. Exh. M. Plaintiff failed to appear at the hearing, although he and counsel had notice. The USWRB found that his use was unjustified, and recommended adverse action. Def. Exh. N.

 Plaintiff challenges the USWRB's March finding, claiming that it was first made at the February proceeding, since the same officials composed both Boards: defendants Gibson, Maiden and Brooks. Plaintiff also notes that Gibson, Maiden and Brooks issued a written denouncement of the District's investigative report on March 6. He states that Gibson, Maiden and Brooks, along with Carl Profater, the Assistant Chief of Police who administers USWRB proceedings, withheld evidence from plaintiff and the Police Department District investigators.

 Plaintiff appealed the Board's finding on April 18, 1985. The Appeals Board was scheduled to hear the USWRB's recommendation on September 28, 1985. An initial hearing, set in August, had been cancelled. Plaintiff had objected to the presence of a member of the Police Department union on the August Appeal Board, because of litigation spawned by the union's publication and distribution of a flyer in March, 1983 regarding the shooting of Adam Boyd. *fn3" The appeals hearing has been re-scheduled several times, but has not been held. Thus, no recommendation has been made to Chief Turner. No final decision has been made by Chief Turner in this matter, and no adverse action has been ...

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