David Gonzalez v. Calero

• Decision Date: 14 April 1977
• Docket Number: Civ. No. 74-1216.
• Parties: Angel DAVID GONZALEZ, Plaintiff, v. Astol CALERO, Individually and as Superintendent of Police, Defendant.
• Court: U.S. District Court — District of Puerto Rico

440 F. Supp. 989

Angel DAVID GONZALEZ, Plaintiff, v. Astol CALERO, Individually and as Superintendent of Police, Defendant.

Civ. No. 74-1216.

United States District Court, D. Puerto Rico.

April 14, 1977.

Laffitte & Dominguez, Hato Rey, P. R., for plaintiff.

Miguel A. Pagán & Hector González López, Dept. of Justice, San Juan, P. R., for defendant.

OPINION AND ORDER

PESQUERA, District Judge.

In the present action, plaintiff seeks money damages and injunctive relief under 42 U.S.C. 1983 and its jurisdictional counterpart 28 U.S.C. 1343. It is alleged that defendant summarily discharged him from his employment as Captain of the Police of Puerto Rico without prior notice or hearing, thus depriving him of property and liberty rights without the Due Process of Law and in violation of his First Amendment rights.

We issued an order to show cause against defendant and the matters of preliminary and permanent injunction were subsequently consolidated, and the case heard in its entirety, except for the question of damages.

After having considered all the evidence presented, and having reviewed the transcript of this case, together with the extensive documentary evidence, this Court makes the following

Findings of Fact

1. Plaintiff is a citizen of the United States and a resident of this judicial district.

2. Plaintiff has been engaged in the public service of the Commonwealth and Federal governments since 1952. From 1969 until July 17, 1974 plaintiff served in the Police Department of the Commonwealth of Puerto Rico as an officer, first as a lieutenant and then as captain, in his capacity as Assistant Commanding Officer of the Drugs and Narcotics Division and as Commanding Officer of the Vice Control Division.

3. At all material times herein defendant Astol Calero was the Superintendent of the Police of the Commonwealth of Puerto Rico.

4. In or about March 1973 plaintiff was appointed by defendant as Commanding Officer of the Criminal Investigation Division for the Western Area of Puerto Rico. Immediately thereafter, plaintiff, with the assistance of Wilson Forestier, Director of the Criminal Investigation Division in Mayaguez, organized a Criminal Intelligence Unit and proceeded to investigate organized crime in the aforementioned area.

5. During the course of his research, plaintiff investigated judges, assistant district attorneys, and high ranking police officers of the Commonwealth of Puerto Rico. He examined the possibility of a racket in the issuance of good conduct certificates in the Police Department and in the obtention of gun permits. For the purpose of these investigations, at plaintiff's request the budget of the Criminal Investigation Division in the Western Area was increased by the defendant.

6. On July 26, 1973, plaintiff participated in a meeting held at the F.B.I. offices at Ramey Air Force Base in Aguadilla. F.B.I. agents and the then United States Assistant District Attorney Juan Pérez-Giménez attended this meeting at which the problem of organized crime in the western area of Puerto Rico was discussed. At said meeting the Federal authorities showed interest in investigating the possible participation of Commonwealth public officials in organized crime.

7. As a result of the aforementioned meeting, plaintiff was invited to travel to Washington, D. C. for an interview with officials of the Criminal Division of the United States Department of Justice.

8. In August 1973 plaintiff had a meeting with his superior, defendant Astol Calero, and with the then Secretary of Justice of the Commonwealth of Puerto Rico, Francisco De Jesús Schuck, Special District Attorney Ramón Cestero, Assistant Secretary of Justice Agrait, and an attorney from the Police Department.

9. At this meeting plaintiff's investigations and interviews with Assistant United States District Attorney Pérez-Giménez were discussed and he requested permission to travel to Washington, D.C. He further requested that a Special District Attorney be assigned to collaborate with him in the investigation of organized crime in the western area of Puerto Rico. Both the assignment of a district attorney and his request to travel to Washington were denied by the then Secretary of Justice De Jesús Schuck.

10. By and around the end of April 1974 plaintiff conducted a raid whereby a justice of the peace was arrested and charged with violation of the gambling laws of Puerto Rico.

11. Subsequent to said raid, on May 9, 1974, defendant Astol Calero summarily transferred plaintiff from the Criminal Investigation Division for the Western Area to the Traffic Division of the same. On that date plaintiff was again transferred as Commanding Officer for the District of Mayaguez and then later that day to the Municipality of Utuado as Commanding Officer.

12. From May to July 1974 defendant received some complaints about plaintiff's conduct. After an investigation, plaintiff was totally exonerated except for a reprimand due to a minor fault.

13. On May 20, 1974, and pursuant to various requests from Néstor F. Concepción, journalist for the newspaper EL DIA, plaintiff had an interview with said newspaperman in which he provided some information related to his activities as Commander for the western area.

14. On May 21, 1974 an article appeared in the aforementioned newspaper signed by reporter Concepción in which a series of imputations and accusations against some government officials were attributed to plaintiff by Mr. Concepción.

15. Subsequent to said article and as a result of the extensive coverage given by the press to such alleged manifestations, plaintiff both publicly and privately denied the same, adding that the imputations allegedly made by him may have come about as interpretations made by the reporter of some information he provided.

16. On May 28, 1974 plaintiff made a sworn statement before Special General District Attorney Alcides Oquendo Maldonado, Chief of the Division for Investigations and Criminal Matters of the Commonwealth Department of Justice, in which he elucidated his imputed declarations to Mr. Concepción.

17. As a result of the aforementioned "declarations" an investigation was ordered by defendant, appointing Captain Lucas Aponte Cruz to effectuate the same. During said investigation Captain Aponte Cruz obtained a sworn statement from reporter Concepción in which he reiterated the information given in his article. Captain Aponte Cruz also obtained a sworn statement from plaintiff in which he testified as follows:

". . . I testify that on May 28, 1974, before the Chief of the Division for Investigation of Criminal Matters for the Department of Justice, Mr. Alcides Oquendo, I made an ample testimony of more than six pages . . . That I made under oath a detailed exposition of the same facts you are investigating for which reason I would like to have before me a copy of said testimony with the purpose of referring to it in case you may wish to discuss some of the concepts stated therein. I wish to state emphatically and specifically that I am at the best disposition that at any time you may deem convenient attest to the same facts, when and if I have before me a copy of said testimony sworn before prosecutor Oquendo to which I subscribe and ratify in each and all of its parts."

18. At said investigation plaintiff further testified that he was at the best disposition of broadening his previous testimony in case it were needed and requested Captain Aponte Cruz to furnish him with a copy of the affidavit submitted to prosecutor Oquendo.¹

19. In his report on the administrative investigation made by Captain Aponte Cruz to his superior, Lt. Col. Andrés Lugo Cay it was concluded that plaintiff had violated some rules of the Police Regulations and his expulsion from the force was recommended.

20. By a letter dated July 16, 1974 plaintiff was terminated in his employment for violation of the following rules of the Police Regulations.

Rule 2 — To ridicule, criticize or censor, be it written or orally, in public or in private, the acts, directives, determinations or legal orders of the Superintendent, of an officer, a member with command authorization or any civil officer of the Police, with sufficient authority to give orders, be that authority granted by the legislature, or by determination of the Superintendent, said orders given as a result or in relation to the official duties of those officers.

Rule 3 — To contest without any based motives the honesty, integrity and competence of any member of the force or civil officer, or make improper manifestations with the only purpose of denigrating his dignity.

Rule 8 — To show manifest incapacity, inattitude disregard or negligence while exercising the duties, functions and responsibilities of a member of the Police and enumerated in Chapter VI of this regulation. To these effects the members of the Police will retain their condition as such at all times and wheresoever they may be in their free time within the territorial jurisdiction of the Commonwealth of Puerto Rico.

Rule 26 — To observe an injurious, in-moral or disorderly conduct thus harming the Police Department.²

21. Both defendant Calero and Captain Lucas Aponte Cruz characterized plaintiff as a good, honest, hard working Police officer.

22. At no time during the aforementioned investigations were any efforts made to obtain the sworn statement mentioned by plaintiff nor were additional sources examined to ascertain whether the information that appeared in the newspaper had been in fact offered by plaintiff.

23. At no time was plaintiff afforded a pretermination hearing in which he could prove that he had not made the imputed declarations. He was not asked to respond in writing to the charges made against him, and was not even given the opportunity to respond orally to the defendant who was the one charged with the responsibility of making the termination decision.

24. Plaintiff took an appeal of his...