Andrew v. Clark, Civ. No. AMD 04-3772.

• Decision Date: 05 February 2007
• Docket Number: Civ. No. AMD 04-3772.
• Parties: Michael ANDREW, Plaintiff, v. Kevin B. CLARK, et al., Defendants.
• Court: U.S. District Court — District of Maryland

Page 659

472 F.Supp.2d 659

Michael ANDREW, Plaintiff, v. Kevin B. CLARK, et al., Defendants.

Civ. No. AMD 04-3772.

United States District Court, D. Maryland.

February 5, 2007.

Howard Benjamin Hoffman, Howard B. Hoffman Esquire Attorney at Law, Rockville, MD, for Plaintiff.

Michael R. Carithers, Jr., Brown and Sheehan LLP, Deborah K. St. Lawrence, Troy Alfred Wiley Priest, Joann Cornelia Woodson Branche, Office of the Baltimore City Solicitor, Baltimore Police Department Legal Affairs Division, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

ANDRE M. DAVIS, District Judge.

This is a civil rights action instituted pursuant to 42 U.S.C. § 1983 by a police official who principally contends that he was the victim of unlawful retaliation in violation of his rights under the First Amendment.¹ Now pending is defendants' motion to dismiss the federal claims pursuant to Fed.R.Civ.P. 12(b)(6).² The filing of the motion to dismiss was prompted by the Supreme Court's decision last term in Garcetti v. Ceballos, ____ U.S. ____, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Concluding as I do that plaintiff has failed to state a cognizable constitutional claim, the ostensible federal claims shall be dismissed with prejudice and the non-diverse state law claims shall be dismissed without prejudice for lack of subject matter jurisdiction.

I.

Accepting as true the well-plead allegations of the second amended complaint, plaintiff Michael Andrew ("Andrew") was employed by the Baltimore City Police Department ("BCPD") from June 1973 until his termination in September 2004. (He has been reemployed by BCPD during the pendency of this case). On December 8, 2003, during plaintiffs tenure as Major and commanding officer in the Eastern Police District, an incident in the Eastern District occurred during which BCPD tactical officers shot and killed an elderly man who had barricaded himself inside his apartment.

Andrew was deeply disturbed by the manner in which the barricade incident was handled. On December 17, 2003, nine days after the incident, plaintiff prepared what he describes as an "internal memorandum." The "internal memorandum" subject line reads, "Barricade Incident on December 8, 2003; 1401 E. Oliver Street (ED) Apt# [sic] 203; Central Complaint Number 033L04138; Shooting Death of Mr. Cephus Smith." The "internal memorandum" header states, "From: Commanding Officer, Eastern District" and is likewise signed, "Michael J. Andrew, Major; Commanding Officer; Eastern District." In extensive detail, and drawing on his 17 years as "a member of the command staff' and the "many barricade situations" he had handled over his 30-year career, plaintiff's "internal memorandum" outlines the events comprising the barricade incident, Andrew's "serious concerns" regarding BCPD's handling of the incident, and a testament that plaintiff's suggestions contained within the "internal memorandum" "[are] proffered to prevent undo criticism for [our] department." Plaintiff addressed and transmitted the "internal memorandum" to the police commissioner "via the chain of command."

Sometime later, after the police commissioner failed to respond to his "internal memorandum," plaintiff provided a copy of the "internal memorandum" to a reporter for The Baltimore Sun. On January 6, 2004, the paper published a news article "regarding the shooting based on the view of the Plaintiff."³ Following the publication of the news article, the BCPD subjected plaintiff to an Internal Affairs investigation and charged him with giving confidential information to the media. Plaintiff alleges, and for purposes of the pending motion to dismiss it is deemed true, that he was thereafter terminated in retaliation for providing a copy of the "internal memorandum" to the media. Plaintiff also alleges his due process rights were violated because he was not afforded a pre-termination hearing or, in the alternative (assuming that he was not entitled to a pre-termination hearing as a Major in the BCPD), because he was not first demoted to a civil service rank and then afforded a hearing.

II.

Garcetti held that, as a matter of law, when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and therefore are not insulated from "managerial discipline" based on such statements. 126 S.Ct. at 1961 (significantly modifying the longstanding test of public employee First Amendment protection derived in Pickering v. Bd. of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). In underscoring the difference between speech made as a citizen versus speech made as a public employee, the Court stated that "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Id. at 1960.

Garcetti outlined two inquiries necessary to determine whether a public employee's speech is protected. Id. at 1958. The first requires determining whether the employee spoke as a citizen on a matter of public concern. Id. If the answer is "yes," the possibility of a First Amendment claim arises; the question is whether the governmental employer had "adequate justification" for treating the employee differently from any other member of the public. Id. If, however, the answer is "no," if the employee was not speaking as a citizen on a matter of public concern, then no First Amendment claim arises out of the employer's reaction. Id. "[I]nterest balancing plays no role when the speech in question is part of the employee's official duties." Mayer v. Monroe County Community School Corp., 474 F.3d 477, 478, 2007 WL 162833, *1 (7th Cir.2007).

Plaintiff concedes that, as Eastern District Commander, he was "routinely required to provide an overview, findings and recommendations as to all significant incidents including shootings that occurred within his district." In his complaints, plaintiff further avers that, during the barricade incident, he "called for a `Technical Assistance Response Unit' (TARU) to look inside the apartment and gather additional intelligence" and "instructed ... officers to continue attempts to negotiate with Mr. Smith." Irrespective of whether these activities comprised the "sum total of the responsibilities the [p]laintiff had at the barricade situation," plaintiff, at the time of the incident, served as Eastern District Commander. As such, in his capacity as Eastern District Commander, plaintiff was acting within the purview of his "official responsibilities" when he prepared an "internal memorandum" that dealt exclusively with the plaintiff's professional assessment of the propriety of the BCPD's handling of the barricade incident that occurred within the Eastern District, his district, and his own candid recommendations for the formulation of better protocols for use in the future.

As a matter of law, in preparing the "internal memorandum" addressing BCPD's handling of the barricade incident and transmitting it "up the chain of command" to the police commissioner, plaintiff was not speaking as a "citizen on a matter of public concern," but as BCPD's Eastern District Commander. As a matter of law, plaintiff's "speech" was pursuant to his "official duties" as a command level official of the BCPD. Aside from the obvious physical characteristics of the memorandum — such as a header that states "From: Commanding Officer, Eastern District" and a signature line that reads, "Michael J. Andrew, Major; Commanding Officer; Eastern District" — the "internal memorandum" recaps in extensive detail the barricade incident in question; details what would be known only to a command official in the BCPD; and makes recommendations that only a command official of BCPD could make. The incident occurred within the Eastern District; as the Eastern District Commander, plaintiff was unequivocally interested in and had access to a trove of information relating to the barricade situation, even if, as he emphasizes, he was not the official in charge of all aspects of the BCPD's response to the incident.

The gravamen of plaintiff's claim seems to be that when he elected to "go public" by handing a copy of his "internal memorandum" to a representative of the media, he converted what is undeniably speech effected pursuant to his employment duties into "citizen speech" on a "matter of public concern." I can find nothing in Garcetti or in the more persuasively-reasoned cases that have interpreted Garcetti to support this view: that the Supreme Court's plain intention to carve out an enclave of unprotected speech by public employees is so limited. Cf. Haynes v. City of Circleville, Ohio, 474 F.3d 357 (6th Cir.2007); Casey v. West Las Vegas Ind. School District, 473 F.3d 1323 (10th Cir. 2007); Mayer, supra; Green v. Bd. of County Comm'rs, 472 F.3d 794 (10th Cir. 2007); Battle v. Bd. of Regents, 468 F.3d 755 (11th Cir.2006) (per curiam); Mills v. City of Evansville, 452 F.3d 646 (7th Cir. 2006).⁴

The "internal memorandum" was not a mere "letter to the editor" by a member of the BCPD, even assuming that had Andrew chosen to "go public" in such manner, doing so would have invigorated his ostensible First Amendment claim. While plaintiff attempts to characterize the "internal memorandum" (coupled with his verbal act of delivering it to a media source) as speech that falls outside the purview of plaintiffs "official responsibilities," in fact, the very means by which it was prepared and the very subject matter it concerned, coupled with plaintiffs overt involvement in the incident in question, together render Garcetti wholly applicable. Cf. Casey, 473 F.3d at 1328 n. 5 (noting that the Supreme Court has instructed lower courts "to view the facts from a `practical' perspective" in determining "the appropriate scope of an employee's official duties"). No reasonable juror could reasonably find that the "internal memorandum" was...