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Baumann v. District of Columbia

August 4, 2009

KRISTOPHER BAUMANN, CHAIRMAN OF THE FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE, PLAINTIFF,
v.
THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Kristopher Baumann, the Chairman of the Fraternal Order of Police and an Officer of the Metropolitan Police Department, brings this action against the District of Columbia and Cathy L. Lanier, the Chief of the Metropolitan Police Department (collectively, "Defendants"), alleging interference with Plaintiff's First Amendment rights, retaliation based on his whistle-blowing activities, and violation of D.C. Code § 5-333.04 (relating to investigations and inquiries involving First Amendment activities). On July 11, 2009, the Court denied Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunctive Relief, finding that (1) Plaintiff had failed to demonstrate that he would suffer any irreparable harm absent injunctive relief, and (2) the undeveloped factual record in this case prevented Plaintiff from demonstrating a substantial likelihood of success on the merits of his claims. See [13] Mem. Op. at 7-14 (Jul. 11, 2009).

Currently pending before the Court is Plaintiff's [20] Second Motion for a Preliminary Injunction, which Plaintiff has filed based on a few additional facts that have developed since the Court issued its previous decision. After thoroughly reviewing the parties' submissions, relevant case law and statutory authority, and the entire record of the case as a whole, the Court concludes that its initial findings remain unaffected by the few factual developments identified by Plaintiff. Accordingly, the Court again finds (1) that Plaintiff has not shown that he would suffer any irreparable harm absent injunctive relief, and (2) that the factual record remains undeveloped, thereby preventing Plaintiff from demonstrating a substantial likelihood of success on the merits of his claims. The Court shall therefore DENY Plaintiff's [20] Second Motion for a Preliminary Injunction, for the reasons that follow.

I. BACKGROUND

Plaintiff is the Chairman of the District of Columbia Fraternal Order of Police ("FOP") and an officer employed by the Metropolitan Police Department ("MPD").*fn1 Pursuant to Article 9 of the Collective Bargaining Agreement between the FOP and MPD (the "CBA"), Plaintiff is assigned full-time to act as the primary union representative of the FOP. See Pl.'s First Mot., Ex. 2 at 6 (FY 2004-FY 2008 CBA).

This case has its origins in a "barricade" incident that occurred on May 30, 2009. Such incidents are subject to various written procedures issued by the MPD. See Pl.'s First Mot., Ex. 1 at 1 (11/7/86 Barricade/Hostage Situation Procedures). Following this incident, the Vice-Chairman of the FOP, Wendell Cunningham, contacted Plaintiff to report that several FOP members raised concerns about the procedures that were used. Am. Compl. ¶ 8. In response, Plaintiff ordered an investigation of the incident by the FOP Safety Committee, an entity that is part of the Joint Safety Committee recognized under Article 17 of the CBA. Id.; Pl.'s First Mot., Ex. 2 at 18 (FY 2004-FY 2008 CBA).*fn2

On June 5, 2009, Vice-Chairman Cunningham requested a taped copy of the radio communications that occurred during the barricade incident. See Defs.' First Opp'n, Ex. A at 1 (6/5/09 Documentation Receipt). In connection with this request, Vice-Chairman Cunningham signed a form ensuring that the radio recordings would not be released to the public:

It is understood, the following recordings are for internal investigation only, there are no public requests for any of these incidents and the recordings will not be released to the public without prior, written approval from the Office of Unified Communications.

Id. The form identified the "[r]equesting agency and [i]dentifier" as "MPD/ERT".*fn3 Id. Defendants assert that the radio recordings could only have been released to Vice-Chairman Cunningham in his capacity as a police officer and not as a union member, see Defs.' Second Opp'n at 8 ("neither a 'Mr.' Cunningham nor a 'Citizen' Baumann would have been authorized to simply walk in and get radio run recordings from the Unified Communications Office"), although neither party has identified any evidence in the record supporting or refuting this assertion.

Within hours after the radio recordings were released to Vice-Chairman Cunningham, Defendants state that "MPD received a telephone call from a reporter representing that he had listened to the recording[s]." Defs.' First Opp'n at 2. As a result, Chief Lanier ordered Lieutenant Dean Welch to conduct an Internal Affairs investigation "to determine the circumstances under which the recording[s] [were] released." Id.

On June 17, 2009, Lieutenant Welch emailed Plaintiff and requested that he provide a convenient date and time to schedule an administrative interview in connection with the investigation:

Chairman/Officer Baumann, I need you to contact me in reference to scheduling an interview concerning an administrative investigation I am conducting. Please provide me with a date and time at your earliest convenience that you can respond to [the Internal Affairs Division]. Thank you for your cooperation.

Pl.'s First Mot., Ex. 4 (6/17/09 Email from D. Welch to K. Baumann). Plaintiff received the email while he was testifying as a witness on behalf of the FOP in an arbitration concerning an "All Hands On Deck" initiative ("AHOD"), an apparent hot-button issue between MPD and the FOP. Pl.'s First Reply, Ex. 3 ¶ 3 (Affid. of K. Baumann). Although Plaintiff repeatedly contacted individuals within the MPD's Labor and Employee Relations Unit to discuss Lieutenant Welch's email, he did not receive timely responses. See Pl.'s First Reply, Ex. 3 ¶¶ 5-6, 8-9 (Affid. of K. Baumann).

On June 18, 2009, Plaintiff attended a meeting of the Ward 5 Republicans, where he was invited to speak about crime-related issues in the District of Columbia. Id. ¶ 7. Plaintiff does not dispute that this was a public meeting. Am. Compl. ¶ 17. At the meeting, Plaintiff claims (and Defendants do not dispute) that a uniformed Lieutenant of MPD was present, and that the ...


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