United States District Court, District of Columbia
[Copyrighted Material Omitted]
For KRISTOPHER BAUMANN, Chairman of the Fraternal Order of Police, Metropolitan Police Department Labor Committee, Plaintiff: Gregory T. Lawrence, LEAD ATTORNEY, Daniel J. McCartin, CONTI FENN & LAWRENCE, LLC, Baltimore, MD; Anthony Michael Conti, Paul A. Fenn, CONTI FENN & LAWRENCE LLC, Baltimore, MD.
For DISTRICT OF COLUMBIA, DEAN WELCH, In his individual capacity, DEAN WELCH, Lieutenant for the Metropolitan Police Department, In his official capacity, CHRISTOPHER LOJACONO, In his individual capacity, CHRISTOPHER LOJACONO, Commander for the Metropolitan Police Department, In his official capacity, MICHAEL ANZALLO, In his individual capacity, MICHAEL ANZALLO, Assistant Chief of Police for the Metropolitan Police Department, In his official capacity, PATRICK BURKE, In his individual capacity, PATRICK BURKE, Assistant Chief of Police for the Metropolitan Police Department, In his official capacity, CATHY L. LANIER, In her individual capacity, CATHY L. LANIER, Chief of Police for the Metropolitan Police Department, In her official capacity, Defendants: Corey Nicholas Neal, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Sarah L. Knapp, LEAD ATTORNEY, ATTORNEY GENERAL'S OFFICE OF THE DISTRICT OF COLUMBIA, Washington, DC.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Kristopher Baumann, Chairman of the District of Columbia Fraternal Order of Police (" FOP" ) and an Officer with the District of Columbia Metropolitan Police Department (" MPD" ), brings this action against the District of Columbia, Chief of Police Cathy L. Lanier, Assistant Chief Patrick Burke, Assistant Chief Michael Anzallo, Commander Christopher Lojacono, and Lieutenant Dean Welch, each in their individual and official capacities (collectively, " Defendants" ). The claims arise out of MPD's investigation of the release to the media of audio transmissions between members of MPD's Emergency Response Team during a barricade situation, and the Plaintiff's testimony during an arbitration regarding Chief Lanier's All Hands on Deck initiative. The Third Amended Complaint alleges (1) the Defendants violated the District of Columbia Whistleblower Protection Act, D.C. Code § 1-615.51 et seq. ; (2) the Defendants retaliated against the Plaintiff for exercising his First Amendment rights, in violation of 42 U.S.C. § 1983; and (3) the MPD's media policy, MPD General Order 204.1, is an unlawful prior restraint in violation of the First Amendment. Presently before the Court is Defendants'  Motion for Summary Judgment. Upon consideration of the pleadings, the relevant legal authorities,
and the summary judgment record, the Court finds that although Plaintiff's claims are not preempted by the Comprehensive Merit Personnel Act, no reasonable jury could conclude the Plaintiff made a protected disclosure for purposes of the Whistleblower Protection Act. The Plaintiff's First Amendment claims are similarly not pre-empted, but no reasonable jury could conclude the protected activities identified by the Plaintiff were substantial or motivating factors in prompting the allegedly retaliatory acts. Finally, the parties failed to employ the proper legal standard in evaluating the Plaintiff's claim that MPD General Order 204.01 as applied in this case constitutes an unlawful prior restraint. Accordingly, the Defendants' motion is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE.
A. Barricade Incident & Initiation of FOP Safety Committee Investigation
The parties generally agree as to events at issue; the dispute arises in determining the motivation for certain conduct. On Saturday May 30, 2009, the MPD Emergency Response Team (" ERT" ) responded to an incident in which a suspect barricaded himself inside a residence. Defs.' Stmt. ¶ 19. During the standoff, the following radio exchange, excerpted in relevant part, took place between members of the ERT:
08:31: Command to Alpha One, be advised I'm being ordered to give you the go to deploy gas. Copy?
08:49: Alpha One to ERT Two, if you deploy that gas and we are not prepared for that, we are not prepared to [inaudible] just yet, please standby for just five more minutes.
09:00: [ERT Two] Copy, I just need communication from you because I'm getting, ah, issues down here. I just need you to keep me informed so I can inform them because, I'm getting - pressured.
09:13: [Alpha One] I understand ERT Two, 'cause I'm trying to put a couple of things in place here. If you can give me a couple of minutes, I'll be happy to brief you.
09:40: Alpha One to ERT Two, would you let command know that we have been in contact with him again, and if they will please just give us a couple of minutes, I'm gonna try to resolve this . . .
09:50: [ERT Two] . . . I'll advise.
10:17: [Delta One replies to Charlie One] . . . also can you advise ERT One, Two, the Command and the Chief they're in a, ah, bad situation. I can see 'em from the front door here. So, if anything happens, they in the line of fire.
10:37: [Charlie One] I'll tell them to move out the way . . .
Pl.'s Ex. 26 (10/1/2010 PERB Hearing Examiner's Report & Recomm.) at 10. The incident was resolved shortly thereafter without deploying tear gas. Id.
The following Monday, Officer Wendell Cunningham--a member of the ERT and Vice Chairman of the FOP, Pl.'s Ex. 26 at 9--contacted the Plaintiff to discuss concerns raised regarding the incident. See, e.g., Pl.'s Ex. 2 (1/25/10 PERB Tr.) at
361:21-362:1. The Plaintiff instructed Officer Cunningham to initiate an FOP Safety Committee investigation into the incident. Id. at 175:5-8 (" I told [the Plaintiff] I think we need to activate the Safety Committee on the situation. And he told me, just go ahead and do what I have to do in reference to that. And I went ahead." ); Defs.' Stmt. at ¶ ¶ 21, 23. Officer Cunningham is not a member of the FOP Safety Committee, but as Vice-Chairman of the FOP, he is responsible for all FOP committees. Pl.'s Ex. 20 (IAB Invest. Report) at 11. Officer Kevin Brittingham chairs the FOP Safety Committee, with Officer Hiram Rosario serving as the co-chair. Pl.'s Ex. 3 (Baumann Dep. Tr.) at 100:1-10.
At the Plaintiff's instruction, Officer Cunningham requested a copy of the transmission " over the ERT channel" during the incident for purposes of " incident review." Defs.' Ex. H (6/3/2009 Email W. Cunningham MPD Transcriptions). MPD released a copy of the transmission to Officer Cunningham on June 5, 2009, at which time he signed an acknowledgment that " [i]t 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." Defs.' Ex. I (Documentation Receipt). On June 5, 2009, Plaintiff released a portion of the MPD radio transmissions recorded during the incident to the media. Pl.'s Resp. Stmt. ¶ 60. The following day, the Internal Affairs Bureau of the MPD opened an investigation into the release of the recording to the media, initially alleging that Officer Cunningham released the transmission to the media. Def.'s Ex. K (6/6/2009 Incident Summary Sheet); see also Defs.' Stmt. ¶ 35; Pl.'s Resp. Stmt. ¶ 35.
B. All Hands on Deck Arbitration & Internal Affairs Investigation
In 2007, Chief Lanier launched the " All Hands on Deck" initiative. Defs.' Ex. B (Gary Reals, DC Police Launch 4th Installment of 'All Hands On Deck', wusa9.com, Oct. 30, 2007). On January 7, 2009, Chief Lanier announced the policy would continue during the 2009 calendar year and indicated that on eight specified three-day weekends and all MPD members would work 8-hour tours of duty on the listed dates. Defs.' Ex. C (9/9/2009 Opin. & Award) at 6. MPD members would not be scheduled for days off on the dates at issue, and leave would be restricted for the dates unless approved prior to January 7, 2009. Id. The Plaintiff was critical of the initiative, Defs.' Ex. B, and the FOP challenged the continuation of the policy into 2009 in arbitration, see generally Defs.' Ex. C. The Plaintiff testified as a witness on behalf of the FOP as part of the arbitration. Id. at 7-11; Defs.' Stmt. ¶ 4. During a break in his testimony, Plaintiff received an email from Lieutenant Welch with Internal Affairs requesting " a date and time at your earliest convenience" for an interview " concerning an administrative investigation." Defs.' Ex. D (6/17/2009 Email D. Welch to K. Baumann). Plaintiff did not respond directly to the email, Defs.' Stmt. ¶ 8, and instead emailed Michael Viehmeyer, the acting Director of the Labor and Employee Relations Unit within the Office of General Counsel, inquiring if the Plaintiff was the subject of the investigation and whether the email was directed to the Plaintiff in his capacity as FOP Chairman, Pl.'s Ex. 11 (6/17/2009 Email K. Baumann to M. Viehmeyer) at 1. Mr. Viehmeyer responded that same day indicating that he " ha[d] no idea what this is regarding, but [would] check." Pl.'s Ex. 12 at 1.
The following day, June 18, 2009, Plaintiff spoke at a Ward 5 community meeting. Lieutenant Ronald Wilkins attended the meeting at the request of MPD, purportedly to " monitor" Plaintiff's speech. Defs.' Stmt. ¶ 41; Pl.'s Resp. Stmt. ¶ 42. That same evening, Plaintiff received an email from Lieutenant Paul Alex Charity instructing Plaintiff to attend an interview with Internal Affairs on June 19, 2009. Pl.'s Ex. 13. Internal Affairs subsequently interviewed Plaintiff on June 19, 2009 and July 14, 2009. Defs.' Stmt. ¶ 37.
As a result of his investigation, Lieutenant Welch concluded (in relevant part), that the Plaintiff provided the transmission to the media " without receiving proper authorization," and the information " was provided to the media as a means to discredit Officials of the Department, and discredit the Department as a whole." Pl.'s Ex. 20 at 28-29. On December 20, 2009, MPD issued a Final Notice of Adverse Action, citing the Defendant for violating MPD General Order 204.1, Part VI-C-1 & 7 by releasing the audio transmissions to the media without " the prior written approval from the Office of Unified Communications" or MPD. Pl.'s Ex. 22 (Final Notice of Adverse Action) ¶ 3 (referencing Pl.'s Ex. 21 (Notice of Proposed Adverse Action) at 1). The Plaintiff was also cited for violating MPD General Order 120.21 by releasing the transmission before initiating an investigation in his role as Chairman or notifying Internal Affairs of any alleged dangerous behavior. Id. (referencing Pl.'s Ex. 21 at 2).
C. Present Litigation and Revocation of the Plaintiff's Police Powers
The Plaintiff filed his initial Complaint accompanied by a motion for preliminary injunction with this Court on June 29, 2009. Compl., ECF No. , Mot. for Prelim. Inj., ECF No. . The Court denied Plaintiff's request for preliminary injunctive relief on July 11, 2009. 7/11/2009 Order & Mem. Opin., ECF Nos. [12, 13].
Two days later, MPD revoked Plaintiff's police powers, confiscated his weapon and badge, and placed him on non-contact status, allegedly for failing to complete CPR, automated external defibrillation, and extendable baton training for 2008. Pl.'s Resp. Stmt. ¶ 79; Defs.' Ex. F (7/6/2009 Incident Summ. as to K. Baumann); see also Pl.'s Ex. 29 at 9 (defining non-contact status). For the sake of brevity, the Court refers to all of the actions taken against the Plaintiff in connection with the training issue collectively as the revocation of his police powers. Delroy Burton, another FOP official, likewise had his police powers revoked for failing to attend the required 2008 extendable baton and CPR training. Defs.' Ex. G (7/6/2009 Incident Summ. as to D. Burton). On appeal, Chief Lanier dismissed the second violation, and reduced the Plaintiff's suspension (without pay) from five days to three days. Pl.'s Ex. 23 (2/5/10 Ltr C. Lanier to K. Baumann) at 7.
D. 2011 Traffic Stop Investigation
On May 6, 2011, Celia Taylor with the Washington Regional Threat and Analysis Center, operated by MPD, observed the Plaintiff stop a vehicle while driving " a black Dodge Charger with District of Columbia license plates, and equipped with emergency response police equipment." Defs.' Ex. N (7/19/2011 Final Invest. Report) at 1. Ms. Taylor mentioned the incident to her supervisor Tom Wilkins during a conversation on or about May 16, 2011. Id. Mr. Wilkins in turn mentioned the incident to Assistant Chief of the Internal Affairs Bureau Michael Anzallo during a meeting regarding an unrelated matter. Id. Assistant Chief Anzallo asked Mr. Wilkins to instruct Ms. Taylor to record her observations in writing. Id. Ms. Taylor
composed an email recounting her observations, which she forwarded to Mr. Wilkins, who subsequently forwarded the email to Assistant Chief Anzallo and Mark Viehmeyer. Id. Assistant Chief Anzallo further instructed his administrative Lieutenant to assign the matter to the LERU for investigation. Id. On May 25, 2011, Lieutenant Linda Nischan was directed to investigate the matter. Id. at 2. The Office of the General Counsel contacted the Department of Motor Vehicles and determined that the FOP was authorized to operate the vehicle in question as an " Authorized Emergency Vehicle." Id. Accordingly, Lieutenant Nischan concluded the Plaintiff did not violate any District or MPD rules or regulations by performing the traffic stop in the Dodge Charger. Id. at 3; Defs.' Stmt. ¶ ¶ 49, 51.
E. Administrative Proceedings
In parallel to the district court litigation, on June 29, 2009, the FOP filed several unfair labor practice (" ULP" ) complaints with the Public Employees Review Board (" PERB" ), including:
(1) PERB Case No. 09-U-4: Alleging " Respondents committed ULPs by interfering, intimidating and retaliating against [Baumann] while he was testifying in his representational capacity at an arbitration challenging MPD's All Hands On Deck Initiative. Pl.'s Ex. 26 at 2-3. This complaint was later amended to allege the 3-day suspension imposed on Baumann purportedly for releasing the recording to the media was an unfair labor practice. Id. at 3.
(2) PERB Case No. 09-U-42: Alleging that " as a result of Welch's e-mail to Baumann to report to IAB for an administrative investigation, the MPD committed ULPs by compelling Baumann to respond to questions . . . regarding protected union activities." Id.
(3) PERB Case No. 09-U-43: Alleging that " MPD committed ULPs by interfering, restraining, intimidating and retaliating against Baumann" while testifying at the AHOD hearing insofar as Baumann received an email from Lieutenant Welch regarding the Internal Affairs interview during a break in his testimony. Id.
(4) PERB Case No. 09-U-44: Alleging MPD committed ULPs against Baumann by sending the June 18, 2009 email instructing Baumann to attend the Internal Affairs interview the following day, and by threatening Baumann with discipline if he did not answer the questions posed during the interview. Id. at 4.
The PERB held hearings on the various complaints across nine days in January and February 2010. Id. at 5. The Hearing Examiner found that because " there was no confidential tactical information on the ERT radio communications recording," the MPD lacked a legitimate reason to discipline the Plaintiff, and therefore concluded that " MPD disciplined Baumann in retaliation for the protected activity of releasing the ERT radio communications to the news media." Pl.'s Ex. 26 at 28-30. However, the Hearing Examiner dismissed the Plaintiff's claims that the emails to the Plaintiff from Internal Affairs requesting an interview and the first Internal Affairs interview constituted unfair labor practices. Id. at 31-35. With respect to the email, the Hearing Examiner held that " FOP's assertions regarding Welch's motives for sending the e-mail to Baumann to schedule an IAB interview are vague, speculative and nothing more than inferences without support in the record," and " there is no material evidence to support a finding that Welch knew Baumann was testifying at the AHOD arbitration or that Baumann had a BlackBerry or that Baumann would check his e-mails at that time." Id. at 35. In terms of the Plaintiff's initial Internal Affairs interview, the
Hearing Examiner conclude that " [f]or his part, Welch accepted Baumann's refusal to answer questions. Therefore, this record establishes that IAB did not engage in any conduct which violated FOP and Baumann's assertion of a labor relations privilege based on Baumann's representational role as FOP Chairman." Id. at 33.
The Plaintiff separately filed a complaint relating to MPD's revocation of his police powers. See generally Pl.'s Ex. 29 (9/25/2010 PERB Hearing Examiner's Report & Recomm.). Noting the history of animosity between the Plaintiff and the Assistant Chief responsible for revoking the Plaintiff's police powers, the Hearing Examiner explained that " [b]ased on the record as a whole, it is fair to conclude that the predominant motive for the Respondents' unprecedented and unilateral actions in its treatment of the Union officials; that is, to retaliate for their assertive activism on behalf of the FOP and its members." Id. at 28.
II. LEGAL STANDARD
" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a ...