Allen v. Brown

• Decision Date: 01 August 2018
• Docket Number: Civil Action No. 17-1951 (ESH)
• Citation: 320 F.Supp.3d 16
• Parties: Robert E. ALLEN, et al., Plaintiffs, v. Jerry BROWN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

320 F.Supp.3d 16

Robert E. ALLEN, et al., Plaintiffs,

v.Jerry BROWN, et al., Defendants.

Civil Action No. 17-1951 (ESH)

United States District Court, District of Columbia.

Signed August 1, 2018

David A. Branch, Law Offices of David A. Branch & Associates, PLLC, Washington, DC, for Plaintiffs.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN S. HUVELLE, United States District JudgePlaintiffs, twenty-three federal police officers stationed at the Veterans Affairs ("VA") Medical Center in Washington, D.C., bring this action against the Chief of Police at the VA Medical Center, Jerry Brown; the VA Medical Center Director, Brian Hawkins; and the Secretary of United States Department of Veterans Affairs. They allege that defendants secretly installed audio and video recording devices at several non-public locations within the VA Medical Center, in violation of federal and state wiretapping statutes, state civil conspiracy law, and the Fourth Amendment. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. For the reasons stated herein, defendants' motion will be denied as to the federal wiretapping claim and the Fourth Amendment claim (Counts 1 and 4) but granted as to the state law claims (Counts 2 and 3).

BACKGROUND

I. FACTUAL BACKGROUND

Unless otherwise noted, the facts set forth herein are taken from the allegations of the amended complaint or undisputed evidence in the record.¹

A. Facts Alleged in the Amended Complaint²

Plaintiffs are police officers employed by the United States Department of Veterans Affairs and stationed at the VA Medical Center, under the command of Chief of Police Jerry Brown. (Am. Compl. ¶¶ 1-24, ECF No. 5.) In October 2013, Chief Brown allegedly "conspired" with the Medical Director, Brian Hawkins, to install hidden cameras, with both audio and video recording capability, in at least three non-public locations within the VA Medical Center – the Police Control Room, the Police Report Writing Room, and the Watch Commander's Office. (Id. ¶¶ 30, 52.) Before arranging for the installation of these devices, Chief Brown did not obtain a warrant or comply with the applicable rules in the VA Handbook.³ (See id. ¶¶ 46-49, 74.) He did, however, send a memorandum, dated October 23, 2013, to Director Hawkins, requesting permission "to install two covert video surveillance devices" – one in the Police Control Room and the other in the Police Report Writing Room. (See Defs.' Ex. A (copy of 10/23/2013 memorandum); see also Am. Compl. ¶ 53.) According to this memorandum, the devices were to be used for a period of 90 days to investigate "suspicious activity" between the evening dispatcher and other police officers. (See Defs.' Ex. A.) Director Hawkins approved Chief Brown's request, and cameras were subsequently installed in these two locations. (See Defs.' Exs. A, J (Decl. of Chief Brown) ("Brown Decl."); see also Am. Compl. ¶¶ 36, 39, 53.) There is no mention of the Watch Commander's Office in this memorandum, and defendants deny that a camera was ever installed in that location. (See Brown Decl. ¶¶ 3-4.)

The Police Control Room is a room where every VA police officer spends time throughout the day. (Am. Compl. ¶ 33.) Other individuals, including cleaning staff, other staff members, various contractors, and patients of the medical facility, also have access to this room. (Id. ¶ 34.) The Report Writing Room is used by police officers daily for a variety of purposes, including the writing of reports and as an alternative break room. (Id. ¶ 40.) The Watch Commander's Office is "used, in part, as a changing room for both male and female officers." (Id. ¶ 43.) In each of these rooms, individuals could stop talking when other individuals entered the room or doors could be closed to prevent individuals from outside the room from overhearing conversations. (Id. ¶ 54.)

VA police officers first learned of the possible existence of hidden cameras on January 19, 2014, when Officer Gentry, a plaintiff, "informed various officers that [Chief] Brown might have secret cameras installed and may be monitoring their activities." (Id. ¶ 35.) A few days later, on January 24, 2014, several officers discovered the camera in the Police Control Room. (Id. ¶ 36.) The camera was "covertly mounted on a support bracket for the CCTV monitors with a microphone hidden behind the monitors." (Id. ) "While the camera and microphone had indicator lights, those lights were covered with black electric tape." (Id. ) Upon discovery, one officer "covered the microphone portion of the camera," while the officers who were present "discussed what to do about the camera and microphone." (Id. ) As soon as the microphone was covered, Chief Brown appeared in the Police Control Room, "demanding to know what the officers were doing in the room and ordered all attending officers to draft statements regarding what was happening in the control room." (Id. ¶¶ 37-38.) In March 2014, a hidden camera with a microphone unit was discovered in the Police Report Writing Room.⁴ (See id. ¶ 39.) In January 2015, officers found a hidden camera with a microphone unit in the Watch Commander's Office (Room 1E229B). (Id. ¶ 42.)

During April 2014, in response to complaints, the VA Medical Center Administrative Investigation Board conducted an investigation into an allegedly hostile work environment fostered by Chief Brown. (See Defs.' Ex. F, at 1, 8 (transcript of 4/23/2014 interview under oath of Chief Brown) ("Brown Tr.").) Chief Brown and Director Hawkins were both interviewed as part of this investigation. (See Defs.' Ex. F; Defs.' Ex. G (transcript of 4/22/2014 interview under oath of Director Hawkins) ("Hawkins' Tr.").) One aspect of this investigation concerned the hidden cameras that had been discovered in the Police Report Writing Room and the Police Control Room. (See Brown Tr. at 11-13, 23-26.) During his interview, Chief Brown testified that he had sought permission from Director Hawkins to install these cameras "as part of a criminal investigation, suspicion of criminal activity, not for monitoring the performance of the work of the employee." (Brown Tr. at 12.) He further testified that he had never requested that the audio recording capabilities of the hidden devices be activated, and that the company who installed the equipment told him that they were not. (Id. at 23-24.) Director Hawkins testified during his interview that he had authorized the video surveillance requested by Chief Brown due to Chief Brown's concerns about potential criminal activity and workplace misconduct. (Hawkins Tr. at 6.) He further testified that he did not authorize any audio. (See id. at 14.) The Board also interviewed Mark Bradford, an employee of the company that installed the surveillance equipment. (See Defs.' Ex. K (transcript of 4/22/2014 interview under oath of Mark Bradford) ("Bradford Tr.").) He testified that the audio capabilities of the devices his company installed were not activated. (See id. at 8.)⁵ Based on the above-described testimony, along with the October 2013 memorandum, and Chief Brown's declaration filed in this case, defendants deny that the audio capabilities of the cameras in the Police Control Room and the Police Report Writing Room were activated or that any audio recordings were ever made. (See Defs.' Facts ¶¶ 8, 11; Brown Decl. ¶¶ 3-4, 10.)

On November 4, 2014, the Veterans Health Administration (VHA) issued Directive 1078, entitled "Privacy of Persons Regarding Photographs, Digital Images, and Video or Audio Recordings." (See Pls.' Ex. 11.) The stated purpose of the directive was to "establish[ ] VHA policy defining the parameters under which members of the VHA workforce may produce and use photographs, digital images, and video or audio recordings of all persons." (Id. at 1.) The Directive provides that:

If the use of equipment to covertly produce photographs, digital images, or video or audio recordings is to investigate suspected cases of VHA workforce misconduct, the VA medical facility Director, the Regional Counsel, and the chief human resources officer of the facility all must approve this use before the equipment may be used.

(Id. at A-2.)

On March 2, 2015, video footage from the camera in the Police Report Writing Room was used by Chief Brown to request disciplinary action against two of the plaintiffs, Officers Kevin Price and Anthony Green, for sleeping on duty and lack of candor in pretending to have been on patrol while actually sleeping. (See Defs.' Ex. B.⁶ )

The cameras in these three locations were used to "ma[k]e audio and video recordings of all personnel who utilized these rooms," which "were delivered on a real-time basis to [Chief] Brown's office." (Am. Compl. ¶¶ 45, 56.) Plaintiffs believe that "these cameras remain[ed] in use as of the filing of this action." (Id. ¶ 44.) They also "suspect the existence of other audio and video recording devices." (Id. ¶ 57.) Defendants deny that the two cameras they admit to installing remained in use until this lawsuit was filed. They claim that the camera in the Police Control Room "was only operational until January 29, 2014," and that the camera in the Police Report Writing Room "was operational until March 23, 2014." (See Brown Decl. ¶¶ 3-4, 10-13.)

II. PROCEDURAL HISTORY

A. 2015 Litigation

In 2015, based on the events described above, 24 VA Medical Center police officers filed suit against Chief Brown, Director Hawkins, and the Secretary of the VA, claiming that the hidden audio and video recording devices in the VA Medical Center violated federal and state law. (See Compl., Allen v. Brown , No. 15-cv-0969 (D.D.C. June 22, 2015) ("2015 Litigation").)⁷ The complaint included five counts: Count I claimed that Chief Brown and Director Hawkins had violated the federal wiretapping statute, see 18 U.S.C. §§ 2510, et seq. ; Count II claimed they had violated the D.C. wiretapping statute, see D.C. Code §§ 23-542 ;...