Baumann v. District of Columbia

• Decision Date: 27 March 2013
• Docket Number: Civil Action No. 09–1189 (CKK).
• Citation: 933 F.Supp.2d 19
• Parties: Kristopher BAUMANN, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

933 F.Supp.2d 19

Kristopher BAUMANN, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09–1189 (CKK).

United States District Court,

District of Columbia.

March 27, 2013.

Gregory T. Lawrence, Anthony Michael Conti, Daniel J. McCartin, Paul A. Fenn, Conti, Fenn & Lawrence, LLC, Baltimore, MD, for Plaintiff.

Corey Nicholas Neal, Sarah L. Knapp, DC Office of the Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

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”). The claims arise out of MPD's investigation of the release to the media of audio transmissions between members of MPD's Emergency Response Team during a barricade situation, and the Plaintiff's testimony during an arbitration regarding Chief Lanier's All Hands on Deck initiative. The Third Amended Complaint alleges (1) the Defendants violated the District of Columbia Whistleblower Protection Act, D.C. Code § 1–615.51 et seq.; (2) the Defendants retaliated against the Plaintiff for exercising his First Amendment rights, in violation of 42 U.S.C. § 1983; and (3) the MPD's media policy, MPD General Order 204.1, is an unlawful prior restraint in violation of the First Amendment. Presently before the Court is Defendants' [87] Motion for Summary Judgment. Upon consideration of the pleadings,¹ the relevant legal authorities, and the summary judgment record, the Court finds that although Plaintiff's claims are not preempted by the Comprehensive Merit Personnel Act, no reasonable jury could conclude the Plaintiff made a protected disclosure for purposes of the Whistleblower Protection Act. The Plaintiff's First Amendment claims are similarly not pre-empted, but no reasonable jury could conclude the protected activities identified by the Plaintiff were substantial or motivating factors in prompting the allegedly retaliatory acts. Finally, the parties failed to employ the proper legal standard in evaluating the Plaintiff's claim that MPD General Order 204.01 as applied in this case constitutes an unlawful prior restraint. Accordingly, the Defendants' motion is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE.

I. BACKGROUND

A. Barricade Incident & Initiation of FOP Safety Committee Investigation

The parties generally agree as to events at issue; the dispute arises in determining the motivation for certain conduct. On Saturday May 30, 2009, the MPD Emergency Response Team (“ERT”) responded to an incident in which a suspect barricaded himself inside a residence. Defs.' Stmt. ¶ 19.² 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. 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, Pl.'s Ex. 26 at 9—contacted the Plaintiff to discuss concerns raised regarding the incident. See, e.g., Pl.'s Ex. 2 (1/25/10 PERB Tr.) at 361:21–362:1. The Plaintiff instructed Officer Cunningham to initiate an FOP Safety Committee investigation into the incident. Id. at 175:5–8 (“I told [the Plaintiff] I think we need to activate the Safety Committee on the situation. And he told me, just go ahead and do what I have to do in reference to that. And I went ahead.”); Defs.' Stmt. at ¶¶ 21, 23. Officer Cunningham is not a member of the FOP Safety Committee, but as Vice–Chairman of the FOP, he is responsible for all FOP committees. Pl.'s Ex. 20 (IAB Invest. Report) at 11. Officer Kevin Brittingham chairs the FOP Safety Committee, with Officer Hiram Rosario serving as the co-chair. Pl.'s Ex. 3 (Baumann Dep. Tr.) at 100:1–10.

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.” Defs.' Ex. H (6/3/2009 Email W. Cunningham MPD Transcriptions). 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.” Defs.' Ex. I (Documentation Receipt). On June 5, 2009, Plaintiff released a portion of the MPD radio transmissions recorded during the incident to the media. Pl.'s Resp. Stmt. ¶ 60. The following day, the Internal Affairs Bureau of the MPD opened an investigation into the release of the recording to the media, initially alleging that Officer Cunningham released the transmission to the media. Def.'s Ex. K (6/6/2009 Incident Summary Sheet); see also Defs.' Stmt. ¶ 35; Pl.'s Resp. Stmt. ¶ 35.

B. All Hands on Deck Arbitration & Internal Affairs Investigation

In 2007, Chief Lanier launched the “All Hands on Deck” initiative. Defs.' Ex. B (Gary Reals, DC Police Launch 4th Installment of ‘All Hands On Deck’, wusa9.com, Oct. 30, 2007). On January 7, 2009, Chief Lanier announced the policy would continue during the 2009 calendar year and indicated that on eight specified three-day weekends and all MPD members would work 8–hour tours of duty on the listed dates. Defs.' Ex. C (9/9/2009 Opin. & Award) at 6. MPD members would not be scheduled for days off on the dates at issue, and leave would be restricted for the dates unless approved prior to January 7, 2009. Id. The Plaintiff was critical of the initiative, Defs.' Ex. B, and the FOP challenged the continuation of the policy into 2009 in arbitration, see generally Defs.' Ex. C. The Plaintiff testified as a witness on behalf of the FOP as part of the arbitration. Id. at 7–11; Defs.' Stmt. ¶ 4. During a break in his testimony, Plaintiff received an email from Lieutenant Welch with Internal Affairs requesting “a date and time at your earliest convenience” for an interview “concerning an administrative investigation.” Defs.' Ex. D (6/17/2009 Email D. Welch to K. Baumann). Plaintiff did not respond directly to the email, Defs.' Stmt. ¶ 8, and instead emailed Michael Viehmeyer, the acting Director of the Labor and Employee Relations Unit within the Office of General Counsel, inquiring if the Plaintiff was the subject of the investigation and whether the email was directed to the Plaintiff in his capacity as FOP Chairman, Pl.'s Ex. 11 (6/17/2009 Email K. Baumann to M. Viehmeyer) at 1. Mr. Viehmeyer responded that same day indicating that he “ha [d] no idea what this is regarding, but [would] check.” Pl.'s Ex. 12 at 1.

The following day, June 18, 2009, Plaintiff spoke at a Ward 5 community meeting. Lieutenant Ronald Wilkins attended the meeting at the request of MPD, purportedly to “monitor” Plaintiff's speech. Defs.' Stmt. ¶ 41; Pl.'s Resp. Stmt. ¶ 42. That same evening, Plaintiff received an email from Lieutenant Paul Alex Charity instructing Plaintiff to attend an interview with Internal Affairs on June 19, 2009. Pl.'s Ex. 13. Internal Affairs subsequently interviewed Plaintiff on June 19, 2009 and July 14, 2009. Defs.' Stmt. ¶ 37.

As a result of his investigation, Lieutenant Welch concluded (in relevant part), that the Plaintiff provided the transmission to the media “without receiving proper authorization,” and the information “was provided to the media as a means to discredit Officials of the Department, and discredit the Department as a whole.” Pl.'s Ex. 20 at 28–29. On December 20, 2009, MPD issued a Final Notice of Adverse Action, citing the Defendant for violating MPD General Order 204.1, Part 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. 22 (Final Notice of Adverse Action) ¶ 3 (referencing Pl.'s Ex. 21 (Notice of Proposed Adverse Action) at 1). The Plaintiff was also cited for violating MPD General Order 120.21 by releasing the transmission before initiating an investigation in his role as Chairman or notifying Internal Affairs of any alleged dangerous behavior. Id. (referencing Pl.'s Ex. 21 at 2).

C. Present Litigation and Revocation of the Plaintiff's Police Powers

The Plaintiff filed his initial Complaint accompanied by a motion for preliminary injunction with this Court on June 29, 2009....