404 F.3d 418 (6th Cir. 2005), 03-4258, McKinley v. City of Mansfield

Docket Nº:03-4258.
Citation:404 F.3d 418
Party Name:Jeffrey MCKINLEY, Plaintiff-Appellant, v. CITY OF MANSFIELD, et al., Defendants-Appellees.
Case Date:April 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 418

404 F.3d 418 (6th Cir. 2005)

Jeffrey MCKINLEY, Plaintiff-Appellant,


CITY OF MANSFIELD, et al., Defendants-Appellees.

No. 03-4258.

United States Court of Appeals, Sixth Circuit.

April 11, 2005.

Argued: Oct. 27, 2004

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Kenneth D. Myers, Cleveland, Ohio, for Appellant.

Richard P. Goddard,

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Calfee, Halter & Griswold, Cleveland, Ohio, for Appellee.


Kenneth D. Myers, Cleveland, Ohio, for Appellant.

Richard P. Goddard, Calfee, Halter & Griswold, Cleveland, Ohio, for Appellee.

Before: KEITH, CLAY, and BRIGHT, [*] Circuit Judges.

CLAY, J., , in which KEITH, J., joined. BRIGHT, J. (p. nnnn), delivered a separate opinion concurring in part and dissenting in part.


CLAY, Circuit Judge.

Plaintiff Jeffrey McKinley, a former police officer in Mansfield, Ohio, appeals the judgment of the district court granting summary judgment to Defendants the City of Mansfield (the "City") and five of its police officers and officials. 1 The district court granted summary judgment on the grounds that McKinley had failed to establish a genuine issue of material fact as to either of the federal constitutional claims he brought in this action under 42 U.S.C. § 1983. McKinley alleges that, in the course of an internal investigation into City police officers' misuse of their radio scanners to invade citizens' privacy, the City and its police officials (1) compelled him to be a witness against himself in violation of the Fifth Amendment to the United States Constitution and (2) maliciously prosecuted him in violation of the Fourth Amendment. The district court dismissed McKinley's state law claims without prejudice. 2 We AFFIRM the district court's entry of summary judgment as to McKinley's malicious prosecution claim. But as to McKinley's Fifth Amendment claim, we REVERSE and REMAND to the district court for proceedings consistent with this opinion.


The following facts are viewed, as they must be, in the light most favorable to McKinley. On February 3, 2000, McKinley, a patrol officer for the Mansfield Police Department, observed an intoxicated William Noble urinating in a parking lot. Advised earlier in the day by his supervisor that all patrol officers were to issue summonses due to overcrowding at the city jail, McKinley began writing Noble a ticket. In the meantime, Noble made a cell phone call in his car as two of McKinley's colleagues, Sgt. David Nirode and officer Gary Foster, arrived on the scene. Upon his arrival, Foster told McKinley and Nirode that he overheard Noble's cell phone call on his police scanner. 3 After Foster described the substance of the phone call to McKinley and Nirode, McKinley arrested and incarcerated Noble for public indecency and intoxication.

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The Scannergate Investigation & Garrity Immunity

In late February 2000, Defendant Harper, the chief of police, directed Defendant Messer, a captain on the force, to oversee an investigation into officers' misuse of scanners. Harper launched the investigation after hearing several reports of officers using scanners to eavesdrop on citizens' phone calls; the investigation became known as "scannergate." Ultimately, the investigation would involve interviews of more than thirty police officers, searches of officers' lockers, and interviews of some civilians. Messer placed Lieutenant Detective Dale Fortney, also a defendant in this case, in command of the investigation and directed Fortney to interview certain officers, including McKinley. Fortney and his colleague, Lt. Goldsmith, conducted two interviews of McKinley, the first on February 25, 2000 (the "first interview"), and the second on March 7, 2000 (the "second interview"). Prior to the first interview, McKinley read and acknowledged the following statement in writing:


You are hereby advised that you are about to be questioned as part of an official administrative investigation of the Division of Police. You will be asked specific question (sic) which will relate directly and narrowly to the performance of your official duties or fitness as an employee or member of the Division of Police. The purpose of this interview is to assist in determining whether disciplinary action is warranted, and the answers furnished may be used in disciplinary proceedings that could result in administrative action against you.

Because this is an administrative and not a criminal investigation, the Division of Police will not use any of the answers or information gained from the interview in any criminal proceeding against you. Further, the Division of Police will not release this information to any other agency without your approval and will ho[l]d it as confidential, except as mandated by an appropriate and competent authority or as necessary for disciplinary proceedings and appeals of such proceedings.

You are further advised that you are hereby ordered and required to fully and truthfully answer all questions asked of you in this interview.

Your failure to comply with this order constitutes your being in violation of the Rules and Regulations of the Division of Police ....

(J.A. at 71). At Fortney's behest, McKinley added: "I am giving the following statement by reason of an order from a superior officer, advising me that refusal to obey could result in disciplinary action.... However, it is my belief and understanding that the Division of Police requires this statement solely and exclusively for internal administrative purposes ...." Id. at 73. These promises of use immunity are consistent with the long-established rule that when a public employer conducts an internal investigation it may dismiss an employee who refuses to answer investigative questions, but it may not use any incriminating statements against the employee in a criminal prosecution regarding the matter under investigation. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

In the first interview, Fortney asked McKinley about officers' use of scanners to eavesdrop and about the events of February 3, 2000, including the Noble phone call.

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McKinley claimed to have no knowledge of the alleged scanner misuse and denied that Foster or anyone else divulged the substance of the Noble call to him. McKinley affirmed the truth of his answers by providing a sworn signature on the interview transcript. The day before, Fortney had taken a statement from Nirode, who represented that Foster overheard Noble's phone call by using his scanner and then related the contents of the call to Nirode and McKinley. Four days after McKinley's first interview, Fortney took a statement from Noble, who confirmed that he had in fact made a cell phone call on February 3 during the minutes preceding his arrest. Apparently due to the inconsistencies between McKinley's first statement and the statements of Nirode and Noble (who only confirmed that a call occurred), Fortney decided to re-interview McKinley.

The second interview in reality consisted of a pre-interview session, which Fortney and Goldsmith did not record, and a recorded interview covering the same topics as the first interview. During the unrecorded pre-interview session--which lasted approximately 10-15 minutes and took place in a different room--Fortney and Goldsmith advised McKinley that they suspected him of lying in the first interview and that they were giving him another chance to tell the truth. 4 In addition, they offered that a union representative, officer Daniel Martincin, be present for the interview. 5 Fortney and Goldsmith did not provide the written Internal Affairs Administrative Procedures statement, see supra, as they had at the first interview; however, Fortney advised McKinley that he was "still under Garrity ", i.e., that just as in the first interview, "if he said things that incriminated himself ... those could not be used against him [criminally]." J.A. at 185 (Fortney Depo.). Finally, at the close of the pre-interview, Goldsmith read the following statement into the tape recorder:

Today's date is Tuesday, March 7th, 2000.... We've called Jeff McKinley back out to be re-interviewed. He has been advised that he's still under Garrity. He was asked if he wanted a rep. present. He stated that he did and Dan Martincin came to the Special Investigative Unit and sat on the pre-interview. We are preparing now to re-interview Jeff McKinley and we'll go over the statement form that he gave to the investigating officers on 2/25/00. It's been determined prior to this interview that he was not truthful at the time he gave the interview on 2/25/00. He will be asked, again, the same questions and will give his responses.

(J.A. at 84.)

The interview then began. McKinley does not dispute that he said the things that were recorded, but alleges that the tape and transcript of the interview do not accurately reflect all of what he said. Specifically, McKinley alleges, and Fortney admits, that Fortney and Goldsmith selectively recorded McKinley's answers; when the officers suspected that an answer was false, they would stop the tape, confront McKinley with their suspicion, and suggest that he give a truthful answer.

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The officers would then rewind the tape to the end of the prior question-and-answer exchange and re-ask the question that prompted the objectionable answer. Consequently, the tape recording and transcript of the second interview omit some or all of the answers Fortney and Goldsmith deemed false and the answers that are reflected on the recording and transcript contradict much of what McKinley said in his first interview. Specifically, McKinley admitted to using his own scanner between 1995 and 1998 to eavesdrop on cordless and cell phone calls; offered a detailed account of other...

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