Bruns v. Pomerleau, Civ. A. No. 21035.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation319 F. Supp. 58
Docket NumberCiv. A. No. 21035.
PartiesJohn Jerome BRUNS, III, v. Donald D. POMERLEAU, Individually and as Commissioner, Baltimore City Police Department, and Ralph G. Murdy, Individually and as Deputy Commissioner, Administrative Bureau, Baltimore City Police Department.
Decision Date20 October 1970

319 F. Supp. 58

John Jerome BRUNS, III,
Donald D. POMERLEAU, Individually and as Commissioner, Baltimore City Police Department, and Ralph G. Murdy, Individually and as Deputy Commissioner, Administrative Bureau, Baltimore City Police Department.

Civ. A. No. 21035.

United States District Court, D. Maryland.

October 20, 1970.

319 F. Supp. 59

Joseph H. H. Kaplan and John Henry Lewin, Jr., Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen. of Md., and Bernard L. Silbert, Asst. Atty. Gen. of Md., for defendants.

Robert C. Verderaime and Verderaime & DuBois, Baltimore, Md., for Ralph G. Murdy.

NORTHROP, Chief Judge.

The plaintiff, a practicing nudist, has brought his complaint against the defendants pursuant to Title 42, U.S.C.A. Section 1983—"Civil Rights Act"—on the ground that the defendants wrongfully refused to accept the plaintiff's application for employment as a probationary patrolman and that such refusal was tantamount to a violation of the plaintiff's civil rights, as guaranteed by the First, Fifth and Fourteenth Amendments of the United States Constitution.

Plaintiff makes a blanket assertion that the State does not have the power to compel the surrender of constitutional rights as a condition to public employment. He alleges that the action on the part of the defendants in excluding him from consideration for the Baltimore City Police Department was arbitrary, capricious and without just cause or justification. He further contends that the defendants knowingly violated Maryland law when they disapproved plaintiff's application under the "Omnibus Act"— Laws 1966, Chapter 203, Section 535 (A) and (B), which established the procedures for determining the eligibility for probationary patrolmen.1

Plaintiff maintains that the only criteria under Maryland law for determining the eligibility of probationary patrolmen is whether the individual passed the Civil Service written examination. This contention may be disposed of by pointing out that the procedure followed by the police department in reference to employment applications, as will appear more fully below, is in conformity with and not in violation of the provisions of the "Omnibus Act."

The criteria established by the Commissioner of Police and by the Civil Service Commission is designed to allow the Commissioner to employ certain procedures,

319 F. Supp. 60
such as investigation, personal contacts, etc., after the threshold written examination is administered by the Civil Service Commission. The policy of the police department is to accept as a probationary patrolman any applicant who passed the written examination given by the Civil Service Commission and who passed the personal interview. The test to qualify for this position of probationary patrolman is thus not limited solely to the successful completion of the written examination, but rather to the passing of all requirements established by both authorities

Subsequent to the completion of these tests, an investigation in depth of the probationary patrolman is conducted, and if the applicant fails to meet the standards of that examination (consisting of neighborhood interviews and a complete scrutiny of his background as to criminal involvement, etc.) then his probationary status is terminated. No psychological test is conducted by either the Civil Service Commission or by the Department. Because of the unique nature of a policeman's duties, it is the finding of this court that it is contemplated and, indeed, is necessary, that such a procedure for recruitment be followed. It is the judgment of this court, therefore, that there was no violation of the Act in regard to the recruitment procedures employed by both the Commission and the Department.

The policeman's job in this day is a sensitive one, and his character, behavior and associations must be subjected to careful scrutiny by those trained in police work. There were two hundred positions to be filled for probationary patrolman when plaintiff applied and the recruitment process was tailored, as it necessarily should have been, to fill those positions as expeditiously as possible. Plaintiff has attempted to place upon the so-called "Omnibus Act" a narrow construction, contending that the police department has no rights in reference to employment. This assuredly cannot be the case, for applications for such a position must be subject to investigation by the police department itself and the competence and fitness of the applicant thoroughly explored.

In order to hold the defendant Commissioner Pomerleau individually liable it would be necessary for plaintiff to establish that he acted outside his scope of authority, as granted by the Omnibus Act, so that his actions could be said to be his own, rather than imputed to the State. His conduct would have to be more than plain negligence to establish liability. A showing of wilfulness or wantonness on his part is needed to take his actions outside the protective covering of his official office. The defendant testified that he considered his actions as falling under his authority to establish the "other eligibility criteria" as provided for in § 535(B). This refusal to accept the plaintiff's application was a policy decision formulated within the discretionary authority granted the Commissioner by the Act. He believed that the best interests of the police department dictated that a nudist not be hired to the position of probationary patrolman. From the facts stipulated to by the parties and the facts developed at trial, this court finds that the Police Commissioner did not act maliciously or wantonly, but acted within the confines of the "Omnibus Act." The record clearly reflects that the defendant, Commissioner Pomerleau, arrived at this policy after extensive sifting of what he considered to be controlling factors. Inasmuch as the evidence indicates that defendant Pomerleau was acting officially and for the Department, the action against him individually will be dismissed, and the action against Ralph G. Murdy, individually and as Deputy Commissioner will also be dismissed. Likewise, no award of damages, either compensatory or punitive, will be granted, since there has not been a showing of such wilfulness or wantonness of conduct as would justify such an award.

Although defendant Pomerleau acted within the scope of his authority so that he cannot be personally held accountable, there remains the request for declaratory

319 F. Supp. 61
relief that his actions as an agent for the state were arbitrary and capricious, and it is to this issue that this court's opinion is now directed. In a case of this dimension, perfect justice, as always, is an illusory concept. Viable equities exist on both sides, and it is the duty of a court of justice, insofar as humanly possible, to find a just and proper balance and reach a result which will do minimal violence to existing concepts

It is conceded that plaintiff stood first of the sixty applicants for the two hundred positions of probationary patrolman, both in the written and in the preliminary interview examinations, and that no derogatory information was turned up by the in-depth investigation. It is stipulated by both parties that there was no reason for his exclusion, other than the fact that he was a nudist. Other stipulations and testimony developed the following facts: That the plaintiff, having been successful on his Civil Service written examination, scoring a 46.750, the highest grade of his class, was called by the police department and requested to file an application; that the plaintiff informed his caller that he wished to have a personal interview with the recruiting sergeant regarding certain personal matters prior to filing a formal application; that an appointment was arranged and plaintiff went to the Department and met with a Sergeant Baronela; at the meeting plaintiff informed Sergeant Baronela that he and his wife and family were members of an organization known as Pine Tree Associates, Inc., a nudist club. Plaintiff inquired whether that fact standing alone would disqualify him from appointment to the position of probationary patrolman, for if it would, he would like to know prior to submitting himself to further examinations and procedures. About a week later plaintiff called the Department and spoke with Sergeant C. Opolko, who informed him that he was familiar with the situation, and advised him to go ahead and submit a formal application. This plaintiff did on March 27, 1968, and a note appeared thereon "Applicant requests complete background check before final interview." This complete background check was usually conducted during the probationary period. Plaintiff took his physical examination on March 27, 1968, and was found physically acceptable. On April 5, 1968, plaintiff returned to the Department and attended a personal interview conducted by Major Lon F. Rowlett, Director of the Personnel Division, Baltimore City Police Department, Lieutenant John J. Cunningham and Sergeant C. Opolko. Plaintiff passed that interview with an accumulative mathematical score of 46.000. His total mark, thereafter, including his written examination, was a 92.750, placing him at the top of the list of those persons who had applied for the two hundred vacancies. An investigation in depth was subsequently conducted and the ultimate report indicated the following:

Disregarding the applicant and his family being Nudists, they would be considered normal average people. We have been unable to develop anything of a derogatory nature, with this one exception.
The applicant is NOT RECOMMENDED.
1. Despite the applicant being frank and discussing his being a Nudist, it is felt that the Department and he would possibly be subjected to public criticism as Nudism is not accepted in normal society.
2. The possibility of being harassed by fellow members of the Department would make his position intolerable.
3. Questionable

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