Horne v. City of Boston
| Decision Date | 19 September 2007 |
| Docket Number | Civil Action No. 04-10718-RGS. |
| Citation | 509 F.Supp.2d 97 |
| Parties | Steven HORNE and Ronald Brown v. CITY OF BOSTON, Sergeant Eric Bulman, and Sergeant John Davin. |
| Court | U.S. District Court — District of Massachusetts |
Stephen A. Roach, Roach & Wise, LLP, Boston, MA, for Sergeant John Davin, Sergeant Eric Bulman, and Ronald grown.
Kerri E. Tierney, Boston Police Department, Eric Bulman, Mary Jo Harris, Morgan, Brown & Joy LLP, Tsuyoshi Fukuda, City of Boston Law Department, Boston, MA, for Sergeant John Davin, City of Boston, Sergeant Eric Bulman and Steven Horne.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Boston police officer Steven Horne and former Boston police officer Ronald Brown brought this lawsuit under the federal and state Civil Rights Acts, 42 U.S.C. § 1983, and Mass. Gen. Laws c. 12, § Horne and Brown allege that they were treated in a racially discriminatory manner by Sergeants Eric Bulman and John Davin, their immediate supervisors in the Youth Violence Strike Force (YVSF), the anti-gang unit of the Boston Police Department (BPD). Defendants Bulman and Davin move for summary judgment on all of plaintiffs' claims. For reasons that will become apparent, the motion will be ALLOWED. Judgment will also enter for the defendant City of Boston.
The facts are taken in the light most favorable to plaintiffs, supplemented where appropriate by additional facts offered by defendants that are not in dispute. Steven Horne was hired by the BPD in March of 1996. In August of 1999, he was assigned to the YVSF. Twenty months later, in April of 2001, Horne was transferred back to patrol duties. Ronald Brown was hired by the BPD in June of 1997. Brown also joined the YVSF in August of 1999; and like Horne, in April of 2001, was reassigned as a patrolman. Brown was subsequently terminated by the BPD after being convicted of a felonious assault.1
Sgt. Eric Bulman initially supervised Horne and Brown in the day division of the YVSF. Lt. Gary French commanded the day division. In April of 2000, Sgt. John Davin replaced Bulman as Horne and Brown's direct supervisor.2 In May of 2000, Lt. Kevin Foley replaced Lt. French. The day and night divisions were then combined under Lt. Foley's overall command.
Vacancies within the BPD are often "posted," that is, a notice is circulated inviting officers to apply for openings in units as they become available. There are no assurances that an officer will receive the assignment for which he or she applies. The Commissioner has the final say on the deployment of BPD officers. Still, it is a common practice for unit commanders to request the assignment of particular officers to their units.
Horne and Brown considered the YVSF to have "many advantages" — YVSF officers exercise more day-to-day discretion than do patrol officers; they are not required to respond to 911 calls; they have citywide jurisdiction; wear plain clothes; travel in unmarked cars; and act "more like detectives than uniformed officers."3 In the summer of 1999, several openings in the YVSF were "posted." Both Horne and Brown applied and were interviewed by Lt. French. According to Lt. French, his ideal candidate was
relatively easygoing but aggressive on the street, aggressive in the sense of searching out information, searching out community contacts, searching out informants. I was looking for officers that weren't problematic, didn't have a history of internal affairs complaints ... didn't have a reputation of being overly aggressive, ... that were progressive in the sense of how they wanted to do policing, ... that were familiar with the neighborhoods, ... that had some experience ... that would fit in with the group, fit in with the other [officers].
French Dep. at 30-31. Lt. French for-warded a list of his ten preferred candidates to the Commissioner.4 Five officers were selected by the Commissioner. In addition to Horne and Brown, they included Adolfo Brito (Cape Verdean male), Joseph McCarthy (white male), and Mariso Langer (Hispanic male).
Brown and Horne maintain that from the beginning Bulman favored white over minority officers. Bulman repeatedly told Horne that he and Brown would have to "prove themselves." Brown found Bulman's approach to be
demeaning, it was body language, his body language was harsh and hard, it wasn't the type of language that you would say, ... somebody that was new in the unit, you come in friendly[.] ... His body language was more of a hard type, you know, no smiles, just up and go.
Brown Dep. at 124. According to Home, Bulman expressed resentment at the fact that he and Brown had been chosen for positions that Bulman felt should have gone to more deserving (non-minority) candidates. Horne does not recall when he heard Bulman give voice to this sentiment; it could have been "a few weeks in or maybe, it could have been a year or so" after he joined the YVSF. Horne Dep. at 55-57.
The practice in the YVSF was for a team of three officers to work together as a squad. Horne and Brown allege that YVSF squads were, for the most part, segregated by race. According to Horne, when Michelle Williams, a newly assigned white officer, asked to partner with Horne and Brown, she was discouraged by an unidentified supervisor from doing so, and chose instead to work with two white officers.5
Bulman assigned Horne, Brown, and Brito to work as a squad. According to Horne, Bulman gave them inconsequential case files to work on, files that Horne described as "minimal, you know, minor warrants of individuals to go seek out ... we [were given] like one or two files [to investigate]." According to Brown, he and Horne were not given any files at all, but were left instead to sit at headquarters with virtually nothing to do. Brown Dep. at 126. Brown testified that during his first two months at the YVSF, "I think we spent, well, I spent a lot of time working with the school officers doing anticrime and school assignments before I started doing any kind of warrant apprehension, because we were not introduced to it, may I say, although there were officers performing warrant apprehensions, but we were not introduced to it."6 Brown Dep. at 45-46.
Horne and Brown believed that Bulman was neglecting their training in order to pay more attention to the training of white officers.
The reason why we hadn't started immediately working on [warrant apprehensions] ... [was] because we didn't know what to do ... he just handed [the file] to us.... Lieutenant French let us know ... the next room is where you can find all the information, but still, like I said, we didn't know what to do.
Horne Dep. at 40-41. After an incident in which Brown and Brito attempted to serve a warrant on a suspect who was being sought by another squad, Bulman made "negative," "nonsupervision type statements" to Brown (the specifics of which Brown does not recall).
On one occasion, Bulman told Lt. French that Horne and Brown had refused to reveal information about a source they had developed who was providing information about a high profile fugitive. French Dep. at 92-93. Brown testified that because the case was "hush hush," he had created a handwritten "intelligence" report "in bits and pieces," which he "more than likely" shared with Bulman and to a lesser degree with an FBI agent hunting the same fugitive.7 Bulman testified that the FBI agent came to him in frustration after Brown refused to identify his source by name. Bulman extracted the source's identity from Brown only "after a lot of teeth pulling." Bulman Dep. at 194.
Bulman also criticized Horne and Brown for using questionable tactics (as when they obtained a key to the apartment of a suspect's girlfriend, which they entered surreptitiously to listen to her voice-mail), and for using poor judgment in making off-duty arrests without the appropriate backup. Bulman "advised [Horne and Brown] that this was not a good practice." Id. at 193. Lt. French shared Bulman's view.
You shouldn't be tracking a dangerous felon off-duty,.... And if you happen to cross a dangerous felon when you're off-duty, the very idea that he's a dangerous felon — and most of these guys like we discussed earlier are involved in violent crimes, shootings, homicides, et cetera — your best bet common sense dictates and this is one of the things we try when we bring an officer on to the unit is to ensure that they have a lot of common sense. Common sense would dictate you contact the local police department. You don't do anything until they arrive and you contact the department, your supervisor. Let them know where you are, what's going on and we get additional people out there to assist them.... If they are off duty and they observe a violent crime in progress or a crime in progress, ... [t]here is not an issue with that. The issue is continuing an investigation ... into one fugitive while they are off duty without anyone in the unit being aware of the fact they are tracking that person. That was the issue that was brought to my attention.
Lt. French did not seek to transfer Horne and Brown at the time because he believed that as they garnered experience their performance would improve. Id. at 97-98. Bulman, for his part, nominated Horne and Brown for several commendations. When asked if these recommendations were consistent with Bulman's criticisms of Horne and...
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