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Baumann v. District of Columbia

September 30, 2010

KRISTOPHER BAUMANN, CHAIRMAN OF THE FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE, PLAINTIFF,
v.
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 ("Plaintiff" or "Baumann"), Chairman of the District of Columbia Fraternal Order of Police ("FOP") and an Officer of the Metropolitan Police Department ("MPD"), brings this action against the District of Columbia and Cathy L. Lanier, Chief of MPD (collectively, "Defendants"), alleging that Defendants retaliated against him for engaging in protected activity in violation of his rights under the First Amendment, the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. ("DCWPA"), and the District of Columbia Police Investigations Concerning First Amendment Activites Act of 2004, D.C. Code §§ 5-333.01 to 5-333.13. Currently pending before the Court is Defendants' [36] Motion for Judgment on the Pleadings, which Baumann opposes. For the reasons explained below, the Court shall deny Defendants' motion for judgment on the pleadings with respect to Baumann's First Amendment and DCWPA claims and grant the motion with respect to Baumann's claim for damages and certain other relief under the Police Investigations Concerning First Amendment Activities Act.

I. BACKGROUND

A. Factual Background

Baumann is the Chairman of the District of Columbia Fraternal Order of Police ("FOP") and an officer employed by MPD. 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 Verified First Am. Compl. ("Am. Compl.") ¶ 6.

This case has its origins in a "barricade" incident that occurred on or about May 30, 2009. Am. Compl. ¶ 7; Answer ¶ 7. The MPD was in pursuit of a suspect that had exchanged gunfire with MPD officers when the suspect barricaded himself inside a building. Am. Compl. ¶ 7; Answer ¶ 7. According to Baumann, MPD command officials took several unusual actions that potentially created public safety issues and violated MPD orders, including allowing teargas to be used against the suspect and authorizing the use of deadly force by a sniper. Am. Compl. ¶ 7. Baumann was not involved in the incident, but he was later contacted by FOP Vice-Chairman Wendell Cunningham, who informed Baumann that several FOP members had raised concerns about the incident. Am. Compl. ¶ 8. Baumann then directed Cunningham to conduct an investigation through the FOP Safety Committee. Id. Cunningham requested a taped copy of the radio communications that occurred during the barricade for the FOP Safety Committee to use in their investigation. Id. ¶ 10. Baumann later admitted that he had provided a portion of the recorded communications to reporters from the Washington Post and the Washington Examiner. Id. ¶ 32. In early June 2009, Chief Lanier ordered Lieutenant Dean Welch, among others, to conduct an Internal Affairs investigation into the unauthorized release of confidential MPD radio transmission recordings. Id. ¶ 11; Answer ¶ 11.

Baumann contends that as part of this investigation, Lt. Welch interviewed FOP members and union representatives, including Vice-Chairman Cunningham, and asked about the FOP Safety Committee's investigation into the barricade incident. Id. ¶ 12. On or about June 17, 2009, Baumann received an email ordering him to report to the Internal Affairs Division for an interview. Am. Compl. ¶ 13; Answer ¶ 13. Baumann claims that this request violated the terms of the parties' CBA because Article 9 of the CBA states that reasonable inquiry regarding FOP business may be made only by the Department's Labor Relations Representative, which does not include Internal Affairs. Id. at ¶ 14. Baumann notified the MPD's Labor and Employee Relations Unit of the issue, but he never received clarification on the matter. Id. ¶ 15. On June 18, 2009, Baumann received additional email and voicemail messages ordering him to report to Internal Affairs at 8:00 a.m. on June 19 for an interview. Id. ¶ 16. At around the same time that Internal Affairs sought to interview him, Baumann was participating as a witness on behalf of FOP in an arbitration concerning whether Chief Lanier's "All Hands on Deck" program was illegal and in violation of collective bargaining provisions. Id. ¶ 13; Answer ¶ 13.

On June 18, 2009, Baumann attended the District of Columbia's Ward 5 Republicans meeting, where he was scheduled to speak. Am. Compl. ¶¶ 17, 41; Answer ¶ 17. A uniformed, on-duty MPD officer in a marked patrol car was also present at that meeting. Am. Compl. ¶ 17; Answer ¶ 17. Baumann spoke to this officer before the meeting, and the officer told him that he was ordered by his supervisor to attend the meeting to "monitor" what Baumann said there. Am. Compl. ¶ 17.

On June 19, 2009, Baumann reported to Internal Affairs for the interview. Am. Compl. ¶ 19; Answer ¶ 19. Lt. Welch refused to allow Vice-Chairman Cunningham to be present at the interview and represent Baumann as his FOP representative. Am. Compl. ¶ 19; Answer ¶ 19. Baumann claims that Lt. Welch told him that he was the target of an administrative investigation into alleged violations of General Order 120.1, an order regarding discipline of police officers. Am. Compl. ¶ 20. Baumann claims that Lt. Welch could not answer Baumann's questions about what he was alleged to have done wrong or what he was charged with violating but that Lt. Welch told him that he might be discharged. Id. During the interview, Lt. Welch told Baumann that he was not aware of Article 9 of the CBA. Id. ¶ 21; Answer ¶ 21. He also informed Baumann that Chief Lanier was the Complainant in the investigation. Am. Compl. ¶ 22; Answer ¶ 22. Lt. Welch questioned Baumann about the unauthorized release of the confidential recording, Am. Compl. ¶ 23; Answer ¶ 23, but Baumann refused to answer and claimed that the questions were improper since he had been acting as FOP Chairman during the events discussed, Am. Compl. ¶¶ 22, 23.

On June 29, 2009, Baumann filed this action along with a [4] Motion for Preliminary Injunction and Motion for Temporary Restraining Order, which the Court denied on July 11, 2009. On July 13, 2009, Defendants relieved Baumann of his police powers, forcing him to surrender his badge and his gun. Id. ¶ 27; Answer ¶ 27. Defendants claim that Baumann was relieved of duty because he failed to comply with training requirements and that his police powers were reinstated after he completed the mandatory training. Answer ¶ 27. On July 14, 2009, Baumann was ordered to report to Internal Affairs to continue his interview with Welch. Am. Compl. ¶ 28; Answer ¶ 28. Baumann claims that during this interview, he was informed that he was under investigation for violating General Order 204.1, an order regarding release of information to the news media. Am. Compl. ¶ 29. Baumann was told that he might be terminated as a result of the investigation and was also informed that his failure to answer the investigator's questions may also be grounds for termination. Id. ¶ 30; Answer ¶ 30. Under these circumstances, Baumann felt compelled to admit that he had provided two news reporters with information regarding the May 30 barricade situation, including a 14-minute portion of an audiotape of the scene. Am. Compl. ¶ 30; Answer ¶ 30. Baumann also informed Welch that he had ordered the FOP Safety Committee to investigate the barricade incident. Am. Compl. ¶ 32.

B. Procedural Background

Baumann filed his initial Complaint on June 29, 2009, alleging that Defendants violated the DCWPA and the First Amendment by investigating him and monitoring his actions in retaliation for his criticism of MPD. Baumann also filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunctive Relief on June 29, 2009, which the Court denied on July 11, 2009, finding that (1) Baumann had failed to demonstrate that he would suffer any irreparable harm absent injunctive relief, and (2) the undeveloped factual record in this case prevented Baumann from demonstrating a substantial likelihood of success on the merits of his claims. See [13] Mem. Op. at 7-14 (Jul. 11, 2009). On July 24, 2009, Baumann filed [20] a second Motion for Preliminary Injunction and [21] a Verified First Amended Complaint ("Amended Complaint"), based on the development of additional facts after the Court issued its July 11, 2009 decision. The Amended Complaint alleges that Defendants violated the DCWPA (Count I), the First Amendment (Count II), and the Police Investigations Concerning First Amendment Activities Act of 2004 (Count III). However, on August 3, 2009, the Court once again denied the motion because Baumann (1) had not established a substantial likelihood of success on the merits, and (2) had not demonstrated that he would suffer irreparable harm absent injunctive relief. On August 26, 2009, Defendants filed their [30] Answer to the Amended Complaint.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The appropriate standard for reviewing a motion for judgment on the pleadings is "virtually identical" to that applied to a motion to dismiss under Rule 12(b)(6). See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006); Jung v. Ass'n of Am. Med. Colleges, 339 F. Supp. 2d 26, 36 (D.D.C. 2004) ("[T]he standard of review for motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is essentially the same as that for motions to dismiss under Rule 12(b)(6)."). Because a Rule 12(c) motion "would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and ...


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