Anderson v. Davila

• Citation: 125 F.3d 148
• Decision Date: 10 September 1997
• Docket Number: No. 96-7658,96-7658
• Parties: 72 Empl. Prac. Dec. P 45,264, 38 Fed.R.Serv.3d 929 Peter ANDERSON v. Ramon DAVILA; Kenneth Mapp; Robert Soto; Elton Lewis; Government of the Virgin Islands, d/b/a Virgin Islands Police Department, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 148

125 F.3d 148

72 Empl. Prac. Dec. P 45,264, 38 Fed.R.Serv.3d 929

Peter ANDERSON v. Ramon DAVILA; Kenneth Mapp; Robert Soto; Elton Lewis Government of the Virgin Islands, d/b/a Virgin Islands Police Department, Appellants.

No. 96-7658.

United States Court of Appeals Third Circuit.

Argued April 8, 1997.

Decided Sept. 10, 1997.

Lee J. Rohn, Maurice Cusick (argued), Law Offices of Rohm & Cusick, Christiansted, St. Croix, U.S. VI, for appellee.

Julio A. Brady, Attorney General, Ernest F. Batenga (argued), Assistant Attorney General, Christiansted, St. Croix, U.S. VI, for appellants.

Before: BECKER, ROTH and WEIS, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This case results from the Virgin Islands Police Department's surveillance of Peter Anderson and his attorney, Lee Rohn, in retaliation for Anderson's filing of an employment discrimination suit against the Department, his former employer. At issue is the district court's permanent injunction forbidding the Police Department from further surveillance of Anderson and Rohn without the court's prior approval.

Peter Anderson, a former police officer in the Virgin Islands Police Department, filed a lawsuit against the Government of the Virgin Islands and its officers on the ground that he suffered employment discrimination. On the day after a local newspaper reported that Anderson was filing a lawsuit against his former employer, the Virgin Islands Police Department commenced an intensive investigation of both Anderson and attorney Rohn. Anderson sought a preliminary injunction from the district court, claiming that such surveillance infringed his First Amendment rights. The district court consolidated the motion for preliminary relief with a trial on the merits and issued a permanent injunction terminating all surveillance of Anderson and Rohn. The injunction further required the Police Department to seek the district court's approval, should the Department wish to renew surveillance of either Anderson or Rohn.

The Government appeals the district court's injunction on several grounds. First, it contends that the district court improperly consolidated Anderson's motion for preliminary relief with a hearing on the merits, thus violating the notice requirements under Rule 65 of the Federal Rules of Civil Procedure. Second, the Government claims that the injunction was improperly granted because Anderson failed to demonstrate either a likelihood that he would prevail on the merits or that the government's surveillance threatened irreparable harm. Finally, the Government contends that the district court's injunction is overbroad and interferes with the police department's legitimate investigative operations.

We shall address each of these arguments in turn.

I. Facts

Prior to the filing of this lawsuit, Peter Anderson had worked for the Virgin Islands Police Department ("Department") and had attained the rank of captain in the Department. In January of 1995, the newly elected Governor and Lieutenant Governor of the Virgin Islands placed Ramon Davila in the position of Police Commissioner of the Virgin Islands. ¹ Anderson alleges that Davila disliked and harassed him because of his race and place of birth. (Anderson is white and was born in the continental United States). After Davila became Police Commissioner, he allegedly directed a steady stream of threats at Anderson to the effect that he would make Anderson's work environment uncomfortable. In addition, Davila allegedly made false accusations about Anderson, limited his work assignments, interfered with his promotions, and cast racial slurs on him.

On January 22, 1996, while Anderson was still employed by the Police Department, he lodged a complaint with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination by the Virgin Islands Police Department. ² At his hearing for injunctive relief, Anderson testified that he was subjected to transfers and demotions in retaliation for filing his complaint with the EEOC. On January 23, 1996, Anderson's attorney, Lee Rohn, sent a formal notice to the Governor of the Virgin Islands, communicating Anderson's intention to file suit against the Government and the Department for employment discrimination. Anderson resigned from the Virgin Islands Police Department on January 31, 1996.

On February 22, 1996, a St. Croix newspaper reported that Anderson had lodged a complaint with the EEOC and planned to file suit against the Government of the Virgin Islands for employment discrimination. ³ The front-page newspaper article identified Lee Rohn as Anderson's attorney and reported that Rohn planned to file a civil lawsuit on Anderson's behalf in April 1996. The article also quoted Anderson several times, including his belief that a "pattern of discrimination" had been directed at him by Commissioner Davila, that the color of his skin had hurt him "both professionally and personally" within the police department, and that he was the subject of "incredible malicious slander and maltreatment."

Within a few days of the publication of this article, the Police Department commenced an extensive investigation of Anderson and Rohn. This investigation included visual surveillance of Anderson talking to his attorney, as well as photographs of both Anderson's home and Rohn's Jeep. In addition, on February 23, 1996, one day after the publication of the article in the St. Croix Avis, Robert Soto, the Assistant Director of the National Strike Force ("NSF") of the Virgin Islands ordered a National Crime Information Computer ("NCIC") check of Rohn.

Anderson learned of the Police Department's surveillance operation from an anonymous source who placed Department photographs on the front seat of Anderson's car. The EEOC had issued Anderson a right to sue letter on July 26, 1996. On September 6, Anderson filed suit against the Department, the Government of the Virgin Islands, Ramon Davila and several other officials. After receiving the anonymous evidence of the Police Department's investigation, Anderson amended his complaint to include allegations of unconstitutional and retaliatory surveillance by the Department. In addition, on September 19, Anderson filed a motion for a temporary retraining order and a preliminary injunction. ⁴

On October 2 and 3, the district court held an evidentiary hearing on Anderson's motion for preliminary relief. At this hearing, Anderson requested an order enjoining the Department from further surveillance of either him or his attorney and also asked for an order prohibiting the Department from retaliating against officers or agents testifying on his behalf at the hearing.

Throughout the hearing, the Police Department asserted that its investigation was not carried out in response to Anderson's employment discrimination complaint. Instead, the Department maintained that it had no intention of investigating Anderson at all. Rather, the real target of their surveillance operation was Anderson's attorney, Lee Rohn, whose boyfriend had been sighted several months earlier, in December 1995, by the Virgin Islands National Strike Force (NSF) driving her Jeep through a known drug-dealing area. According to the Department, Rohn's boyfriend, Curtis Jacobs, had been implicated in illegal drug-dealing activity, and his use of her Jeep justified the Police Department's surveillance of its owner. The Police further explained that the photographs of Anderson were inadvertently taken by officers who mistook Anderson's home for Rohn's.

The Police Department presented little evidence to support its theory. For example, the Department was unable to demonstrate that it had investigated Lee Rohn or her Jeep in the months immediately following the Department's sighting of Curtis Jacobs. Moreover, there was testimony that the NSF's Assistant Director, Robert Soto, was pleased with the Department's surveillance operation and had remarked "this is great" when he learned about the photographs of Anderson and Rohn.

The district court concluded at the end of its hearing that Anderson was entitled to injunctive relief. Not satisfied with the Department's justification for its surveillance, the district court concluded that "the defendants ... engaged in surveillance of Peter Anderson and Lee Rohn as a direct result of the lawsuit Mr. Anderson filed." Anderson v. Government of the Virgin Islands, No.1996-118 (D.V.I. Oct. 16, 1996) at 8. The district court further elaborated:

[T]he initial efforts to determine the ownership of the red Jeep and Mr. Jacob's connection to it were properly based upon reasonable suspicion arising from information received in an ongoing criminal investigation of drug activity. By late February 1996, however, what may have started as a proper investigation was converted and perverted into an effort to "dig up dirt" on Rohn and her client in response to the lawsuit. It is simply too large a coincidence that the NCIC check performed on Lee J. Rohn was requested on February 23, 1996, the day after the story about the filing of Anderson's lawsuit against the defendants appeared in the newspaper. It also defies logic that the photos of Peter Anderson's house were taken "by mistake," as the defendants would have us believe.

Anderson, No.1996-118 at 13 (emphasis provided). Having concluded that the Police Department's surveillance operation was improper and had been initiated in response to Anderson's lawsuit, the District Court ordered the Police Department, "TO CEASE ALL SURVEILLANCE EFFORTS AGAINST PETER ANDERSON AND LEE J. ROHN unless and until they seek and obtain approval from this Court, based upon an appropriate showing that reasonable suspicion or probable cause exists for such investigation."

Anderson, No.1996-118, order at 2. Prior to issuing its order, the court noted that it considered the hearing to be a trial on the merits and that the injunction was therefore permanent.

The present appeal followed....