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Baumann v. District of Columbia

United States District Court, D. Columbia.

October 28, 2013

KRISTOPHER BAUMANN, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants

Page 69

For KRISTOPHER BAUMANN, Chairman of the Fraternal Order of Police, Metropolitan Police Department Labor Committee, Plaintiff: Gregory T. Lawrence, LEAD ATTORNEY, Anthony Michael Conti, Daniel J. McCartin, Paul A. Fenn, CONTI FENN & LAWRENCE, LLC, Baltimore, MD.

For DISTRICT OF COLUMBIA, Defendant: 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; Darrell Chambers, DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL, Washington, DC.

For CATHY L. LANIER, Chief of Police for the Metropolitan Police Department, In her official capacity, CATHY L. LANIER, In her individual 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.

For PATRICK BURKE, Assistant Chief of Police for the Metropolitan Police Department, In his official capacity, PATRICK BURKE, In his individual capacity, MICHAEL ANZALLO, Assistant Chief of Police for the Metropolitan Police Department, In his official capacity, MICHAEL ANZALLO, In his individual capacity, CHRISTOPHER LOJACONO, Commander for the Metropolitan Police Department, In his official capacity, CHRISTOPHER LOJACONO, In his individual capacity, DEAN WELCH, Lieutenant for the Metropolitan Police Department, In his official capacity, DEAN WELCH, In his individual 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.

OPINION

Page 70

MEMORANDUM OPINION

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

Page 71

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" ). Presently before the Court is the Plaintiff's [99] Motion for Summary Judgment and the Defendants' [100] Cross-Motion for Summary Judgment. The Court previously granted Summary Judgment to the Defendants on all but one of the Plaintiff's claims. The claim remaining before the Court arises out of MPD's discipline of the Plaintiff for releasing to the media without prior authorization a recording of audio transmissions (" the recording" ) between members of MPD's Emergency Response Team during a barricade situation. The Plaintiff alleges that Parts VI-C-1 & 7 of the MPD's media policy -- MPD General Order 204.01 -- as applied to the Plaintiff in this case, constitute an unlawful prior restraint of speech in violation of the First Amendment. Upon consideration of the pleadings, [1] the relevant legal authorities, and the summary judgment record, the Court finds that Parts VI-C-1 & 7 of MPD General Order 204.01 are not unconstitutional prior restraints as applied to the Plaintiff. Accordingly, the Plaintiff's motion is DENIED and the Defendants' motion is GRANTED.

I. BACKGROUND

A. Factual Background

The parties generally agree as to events at issue. [2] At all times relevant to the issue remaining before the Court, the Plaintiff was assigned full-time to act as Chairman of the FOP, the D.C. police union, pursuant to Article 9 of the Collective Bargaining Agreement between the FOP and MPD. See Pl.'s Stmt. ¶ 10.

On Saturday May 30, 2009, the MPD Emergency Response Team (" ERT" ) responded to an incident in which a suspect barricaded himself inside a residence. Pl.'s Stmt. ¶ 1. 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.
***

Page 72

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, ECF No. [89]. The incident was resolved shortly ...


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