Baumann v. Dist. of Columbia
| Decision Date | 28 October 2013 |
| Docket Number | Civil Action No. 09–1189 (CKK) |
| Parties | Kristopher Baumann, Plaintiff, v. District of Columbia, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Gregory T. Lawrence, Anthony Michael Conti, Daniel J. McCartin, Paul A. Fenn, Conti Fenn & Lawrence, LLC, Baltimore, MD, for Plaintiff.
Corey Nicholas Neal, DC Office of The Attorney General, Sarah L. Knapp, Attorney General's Office of The District of Columbia, Darrell Chambers, District of Columbia Office of The Attorney General, Washington, DC, for Defendants.
Plaintiff Kristopher Baumann, Chairman of the District of Columbia Fraternal Order of Police (“FOP”) and an Officer with the District of Columbia Metropolitan Police Department (“MPD”), brings this action against the District of Columbia, Chief of Police Cathy L. Lanier, Assistant Chief Patrick Burke, Assistant Chief Michael Anzallo, Commander Christopher Lojacono, and Lieutenant Dean Welch, each in their individual and official capacities (collectively, “Defendants”). Presently before the Court is the Plaintiff's [99] Motion for Summary Judgment and the Defendants' [100] Cross–Motion for Summary Judgment. The Court previously granted Summary Judgment to the Defendants on all but one of the Plaintiff's claims. The claim remaining before the Court arises out of MPD's discipline of the Plaintiff for releasing to the media without prior authorization a recording of audio transmissions (“the recording”) between members of MPD's Emergency Response Team during a barricade situation. The Plaintiff alleges that Parts VI–C–1 & 7 of the MPD's media policy—MPD General Order 204.01—as applied to the Plaintiff in this case, constitute an unlawful prior restraint of speech in violation of the First Amendment. Upon consideration of the pleadings,1 the relevant legal authorities, and the summary judgment record, the Court finds that Parts VI–C–1 & 7 of MPD General Order 204.01 are not unconstitutional prior restraints as applied to the Plaintiff. Accordingly, the Plaintiff's motion is DENIED and the Defendants' motion is GRANTED.
The parties generally agree as to events at issue.2 At all times relevant to the issue remaining before the Court, the Plaintiff was assigned full-time to act as Chairman of the FOP, the D.C. police union, pursuant to Article 9 of the Collective Bargaining Agreement between the FOP and MPD. See Pl.'s Stmt. ¶ 10.
On Saturday May 30, 2009, the MPD Emergency Response Team (“ERT”) responded to an incident in which a suspect barricaded himself inside a residence. Pl.'s Stmt. ¶ 1. During the standoff, the following radio exchange, excerpted in relevant part, took place between members of the ERT:
08:31: Command to Alpha One, be advised I'm being ordered to give you the go to deploy gas. Copy?
08:49: Alpha One to ERT Two, if you deploy that gas and we are not prepared for that, we are not prepared to [inaudible] just yet, please standby for just five more minutes.
09:00: [ERT Two] Copy, I just need communication from you because I'm getting, ah, issues down here. I just need you to keep me informed so I can inform them because, I'm getting—pressured.
09:13: [Alpha One] I understand ERT Two, ‘cause I'm trying to put a couple of things in place here. If you can give me a couple of minutes, I'll be happy to brief you.
* * * 09:40: Alpha One to ERT Two, would you let command know that we have been in contact with him again, and if they will please just give us a couple of minutes, I'm gonna try to resolve this ...
09:50: [ERT Two] ... I'll advise.
* * *
10:17: [Delta One replies to Charlie One] ... also can you advise ERT One, Two, the Command and the Chief they're in a, ah, bad situation. I can see ‘em from the front door here. So, if anything happens, they in the line of fire.
10:37: [Charlie One] I'll tell them to move out the way ...
Pl.'s Ex. 26 (10/1/2010 PERB Hearing Examiner's Report & Recomm.) at 10, ECF No. [89]. The incident was resolved shortly thereafter without deploying tear gas. Id.
The following Monday, Officer Wendell Cunningham—a member of the ERT and Vice Chairman of the FOP—contacted the Plaintiff to discuss concerns raised regarding the incident. See Pl.'s Ex. 1 (PERB Tr.) at 161–62. Specifically, ERT members voiced safety concerns as a result of “someone outside of ERT interfering with a barricade scene.” See Pl.'s Stmt. ¶ 3; Pl.'s Ex. 1 (PERB Tr.) at 162.
The Plaintiff also received several calls from the media regarding the barricade. Pl.'s Stmt. ¶ 5; Pl.'s Ex. 2 (PERB Tr.) at 1471–72. On June 2, 2009, the Plaintiff was contacted by the media and advised that an MPD official had stated that tear gas had been ordered at the barricade, but that another MPD official had denied that there was an order to deploy tear gas. Pl.'s Stmt. ¶ 6; Pl.'s Ex. 3 (Baumann Dep. Tr.) at 137. The next day, at the Plaintiff's instruction, Officer Cunningham requested a copy of the transmission “over the ERT channel” during the incident for purposes of “incident review.” Pl.'s Stmt. ¶ 7; Pl.s' Ex. 3 (Baumann Dep. Tr.) at 138. MPD released a copy of the transmission to Officer Cunningham on June 5, 2009, at which time he signed an acknowledgment that “[i]t is understood[,] the following recordings are for internal investigation only[,] there are no public requests for any of these incidents and the recordings will not be released to the public without prior, written approval from the Office of Unified Communications.” Pl.s' Ex. 8 (Final Investigation Report) at 23. That same day, the Plaintiff listened to the MPD radio transmissions during the incident and released a portion of the recording to the media. Pl.'s Stmt. ¶ 8.
On October 9, 2009, the Plaintiff was served with a Final Investigation Report and Notice of Proposed Adverse Action. See Pl.'s Ex. 8 (Final Investigation Report) and 9 (Notice of Proposed Adverse Action). The Final Investigation Report charged the Plaintiff with misconduct for releasing audio transmissions to the media “without receiving proper authorization from the Metropolitan Police Department and the Director of the Office of Unified Communication prior to dissemination.” Pl.'s Ex. 8 (Final Investigation Report) at 4. The Report alleged that the Plaintiff provided the information to the media “as a means to discredit Officials of the Department, and discredit the Department as a whole.” Id. at 5. On December 20, 2009, MPD issued a Final Notice of Adverse Action, citing the Defendant for violating MPD General Order 204.01, Parts VI–C–1 & 7 by releasing the audio transmissions to the media without “the prior written approval from the Office of Unified Communications” or MPD. Pl.'s Ex. 10 (Final Notice of Adverse Action) ¶ 3. MPD General Order 204.01, Parts VI–C–1 & 7 (“the General Order”) provide that “[c]onfidentialinformation that may jeopardize the successful conclusion of an investigation” cannot be released to the public, and “[a]ll documents not listed as releasable shall be closed to public inspection.” See Pl.'s Ex. 12 (MPD General Order 204.01).
The Plaintiff appealed the adverse action. On February 5, 2010, Chief of Police Cathy L. Lanier denied the Plaintiff's appeal. See Pl.'s Ex. 11 (Chief Lanier Letter denying appeal) at 7. In her letter denying the appeal, Chief Lanier noted that the recording related to two separate ongoing criminal investigations concerning the May 30, 2009 barricade and constituted “secure tactical communications by members of the [ERT].” Id. at 4.
In the testimony Chief Lanier gave to the Public Employee Relations Board on February 3, 2010, Chief Lanier indicated that she did not consider it harmful for legitimate safety concerns to be brought to the attention of the public by the D.C. police union. Pl.'s Ex. 2 (PERB Tr.) at 1314.
The Plaintiff filed his initial Complaint accompanied by a motion for preliminary injunction with this Court on June 29, 2009. Compl., ECF No. [1], Mot. for Prelim. Inj., ECF No. [4]. The Court denied Plaintiff's request for preliminary injunctive relief on July 11, 2009. 7/11/2009 Order & Mem. Opin., ECF Nos. [12, 13].
The Defendants filed a Motion for Summary Judgment requesting judgment in their favor on all of the Plaintiff's pending claims. Mot. for Summ. J., ECF No. [87]. On March 27, 2013, the Court granted summary judgment in the Defendants' favor as to the Plaintiff's Whistleblower Protection Act and First Amendment retaliation claims. See Baumann v. District of Columbia, 933 F.Supp.2d 19 (D.D.C.2013). The Court, however, denied summary judgment on the Plaintiff's claim that the General Order is an unlawful prior restraint because neither party employed the balancing test set forth in Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and United States v. Nat'l Treasury Employees Union (“ NTEU ” ), 513 U.S. 454, 465–66, 468, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) for analyzing the constitutionality of “restraints on the speech of government employees on matters of public concern.” Id. at 41–42. Consequently, the Court requested further briefing on this claim.
The parties filed cross-motions for summary judgment on the remaining claim that the General Order is an unlawful prior restraint in violation of the First Amendment. In its supplemental briefing before the Court, the Plaintiff argues that since he released the recording to the media in his capacity as lead union representative for the FOP, he was speaking as a citizen about a matter of public concern and, accordingly, any restriction on his speech must be analyzed under the balancing test set forth in Pickering and NTEU. In applying that test, the Plaintiff contends that MPD officers' and the public's interest in officers being able to speak about important matters ailing the police department...
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