Anderson v. Dolce
Decision Date | 25 February 1987 |
Docket Number | No. 86 Civ. 5121-CLB.,86 Civ. 5121-CLB. |
Citation | 653 F. Supp. 1556 |
Parties | Robert ANDERSON, Plaintiff, v. John M. DOLCE, et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
Arthur H. Grae, White Plains, N.Y., for plaintiff.
Joseph W. Henneberry, the City of White Plains, Dept. of Law, White Plains, N.Y., for defendants.
Pursuant to Rule 56 motions in this action, we are called upon to decide the constitutionality of Section 75, et seq., of the New York State Civil Service Law (McKinney's 1983 and 1987 Supp.). Section 75 sets out the procedures for removal of and other disciplinary action against tenured civil service employees of New York State and its political subdivisions. Plaintiff Robert Anderson is a police officer employed by the City of White Plains faced with probable termination at the conclusion of a disciplinary proceeding relating to, although not exclusively concerned with, an incident in which Officer Anderson allegedly assaulted a civilian.
In accordance with Section 75, a pre-termination hearing was scheduled on the charges preferred against Officer Anderson. Before the hearing could get under way, Officer Anderson filed a complaint in federal district court under Section 1983 of Title 42 of the United States Code, claiming that Section 75 of the Civil Service Law does not provide the process that is due a tenured public employee under the Fourteenth Amendment of the United States Constitution, and is therefore facially unconstitutional. Officer Anderson also claims that Section 75 is unconstitutional as applied in his case.
Defendants in the § 1983 action are John M. Dolce, White Plains Commissioner of Public Safety; Charles A. Bradley, Hearing Officer in the disciplinary proceeding involving Officer Anderson; Anthony Grant, White Plains Corporation Counsel; Joseph W. Henneberry, Senior Assistant Corporation Counsel; the Hon. Alfred Del Vecchio, Mayor of White Plains; Patrick Gleason, Chief of Police; and the City of White Plains.
The incident which prompted the disciplinary action against Officer Anderson occurred on July 5, 1985. Officer Anderson was working off duty as a private security guard at 76 South Lexington Avenue, an apartment building in the City of White Plains. Although the record is not entirely clear, Officer Anderson has worked at 76 South Lexington since 1981 in furtherance of his part time security business. This business apparently includes working as a security guard and supervising other security guards. Police department regulations permit such outside employment.
At or around the time of the July 5th incident, on the ground floor of 76 South Lexington was a barber shop known as John's Hairstylist, run by one Carmine Soddano, a/k/a "John" Soddano. Animosity between Officer Anderson and Mr. Soddano had been building for a few years before the incident. It is not clear how the feud between the two men originated, but hostilities date back to 1981, when Officer Anderson began working at 76 South Lexington. Twice in June 1981, Officer Anderson while on duty as a police officer allegedly witnessed Mr. Soddano being harassed and assaulted by another security guard at 76 South Lexington and refused to offer any assistance or make an arrest based upon a complaint by Mr. Soddano. In October 1981, while off duty and working as a private security guard, Officer Anderson allegedly harassed and assaulted Mr. Soddano resulting in Mr. Soddano's arrest for harassment, resisting arrest, and criminal trespass in the third degree. Those charges were adjourned in contemplation of dismissal, which is a sort of Scottish verdict. See New York Criminal Procedure Law § 170.55 (McKinney's 1982).
Truce apparently was called for a few years, but in 1985, hostilities again erupted. In April 1985, Officer Anderson allegedly entered Mr. Soddano's shop and harassed a friend of Mr. Soddano, one John Mitchell, resulting in the arrest of Mr. Mitchell for disorderly conduct. On June 29, 1985, Officer Anderson issued two motor vehicle summonses to Mr. Soddano for failure to signal and for having defective tail lights. In response, on July 1, 1985, Mr. Soddano registered a formal complaint against Officer Anderson with the Chief of Police charging harassment. On July 4, 1985, the tires on Mr. Soddano's car were slashed by an unknown person.
In the evening of July 5, 1985, Officer Anderson while off duty and working as a security guard had an encounter with Mr. Soddano. Mr. Soddano was in his shop, working on his books at a desk by the front window when Officer Anderson approached. Apparently, Mr. Soddano accused Officer Anderson of being responsible for slashing the tires. The two men exchanged insults and racial epithets, and Officer Anderson has claimed that Mr. Soddano exposed his genitals. Officer Anderson attempted to enter the shop but found the door locked. He called police headquarters requesting a single police car be sent to 76 South Lexington to help him with "a little bit of a situation."
Officer Robert Graham was dispatched to the scene and he has reported that when he arrived, Officer Anderson asked him to assist in arresting Mr. Soddano on charges of harassment and public lewdness. Officer Graham attempted to resolve the dispute peaceably, but at first Mr. Soddano would not allow either Officer Graham or Officer Anderson to enter the shop. Rather, Mr. Soddano telephoned the White Plains police station and requested, to no avail, that the Chief of Police be informed that Officer Anderson was harassing him. Eventually, Mr. Soddano unlocked the door.
What happened next has been hotly disputed. Officer Graham and Mr. Soddano both have claimed that as soon as the door to the shop was opened, Officer Anderson pushed in front of Officer Graham and took a swing at Mr. Soddano's face, hitting him and knocking him to the floor. Officer Anderson then allegedly jumped on Mr. Soddano, who was bleeding profusely, and began swinging away, hitting Mr. Soddano at least five times. Mr. Soddano started swinging back, but by the time Officer Graham pulled the two apart, Mr. Soddano had sustained numerous contusions on his body and head and a laceration above his left eye. Officer Anderson received a minor cut on his knuckle.
As might be expected, Officer Anderson's version of the scuffle is quite different. He has claimed that as soon as he and Officer Graham entered the shop, Mr. Soddano grabbed a chair and attempted to hit Officer Graham. Mr. Soddano allegedly missed, and fell, cutting himself on the chair. Officer Anderson has alleged that at no time did either he or Officer Graham strike Soddano. One other eyewitness report of the incident is available from the tape recorded radio log of the police dispatcher. At the time of the incident on July 5, 1985, an anonymous caller reported a fight at 76 South Lexington involving police officers.
Mr. Soddano was arrested that evening and charged with harassment, attempted assault and resisting arrest. All charges were ultimately dropped.
Officer Anderson was charged with misdemeanor assault and official misconduct. He was tried before a jury of six and acquitted.
The police department undertook an investigation of the incident, interviewing every officer and civilian involved, including radio dispatchers and officers on duty when Officer Anderson's call for assistance came in. On July 12, 1985, Officer Anderson was served with disciplinary charges, pursuant to Section 75, relating to the July 5th incident but including other infractions of Police Department Rules and Regulations allegedly committed on other dates.
The charges preferred against Officer Anderson can be summarized as follows:
CHARGE I — four instances of tardiness in reporting for tour of duty;
CHARGE II — one unexcused absence from work amounting to a failure to obey the duty roster which has the force of an order;
CHARGE III — with respect to the incident forming the basis for CHARGE II, failure to follow the prescribed procedure in requesting a personal leave day;
CHARGE IV — one instance of allowing a fellow officer to ride and sit in a vehicle without authorization from a superior officer;
CHARGE V — with respect to the incident forming the basis for CHARGE IV, failure to consult with a superior officer before taking a fellow officer off his post;
CHARGE VI — six occasions of abuse of official power to "control, affect, influence, reward or punish, the ... action, expression or opinion of any person or the lawful business of any person";
CHARGE VII — with respect to the June 29, 1985, issuance of tickets to Mr. Soddano, failure to report to the Chief of Police "the facts surrounding any incident occurring on or off duty where the member is likely to become a complainant or defendant in a civil or criminal action";
CHARGE VIII — a course of conduct amounting to a violation of the Department rule that members of the police force "when within the confines of the City of White Plains are held always to be on duty although periodically relieved from the routine performance of it";
CHARGE IX — with respect to the incident of July 5, 1985, conduct that is "prejudicial to the good order, or reputation of the Department ..." CHARGE X — with respect to the incident of July 5, 1985, violating New York's criminal assault statute. Department rules note that ;
CHARGE XI — with respect to the incident of July 5, 1985, use of unnecessary force;
CHARGE XII — with respect to the investigation of the incident of July 5, 1985, failure truthfully to answer all questions; and
CHARGE XIII — making a...
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