Kang v. Mayor & Aldermen of City of Savannah
| Decision Date | 31 March 2022 |
| Docket Number | CV421-111 |
| Parties | DANIEL KANG, Plaintiff, v. THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, and ROY W. MINTER, JR., Chief of Police for the City of Savannah, Georgia, in his Individual and Official Capacities, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Before the Court is Defendant Roy W. Minter, Jr.'s ("Chief Minter") Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 37), which Plaintiff Daniel Kang has opposed (Doc. 48). For the following reasons, Chief Minter's motion to dismiss is GRANTED IN PART and DENIED IN PART.
This case involves allegations that Roy W. Minter, Chief of Police for the City of Savannah Police Department, unlawfully terminated Plaintiff for engaging in constitutionally protected speech. (Doc. 35 at ¶¶ 5 114-115.) The following events are described as alleged in Plaintiff's Second Amended Complaint.[1] (Id.) Plaintiff joined the Savannah-Chatham Metropolitan Police Department in 2012 and served in several different units, including Patrol, Crime Suppression, Special Weapons and Tactics, and the Narcotics and Special Investigations Section. (Id. at ¶ 7.) In 2018, the Savannah-Chatham Metropolitan Police Department demerged, forming separate police departments for the City of Savannah and Chatham County.[2] (Id. at ¶ 10.) Chief Minter was appointed Chief of Police for SPD in August of 2018. (Id. at ¶ 20.)
Prior to the demerger, Plaintiff worked on the county Counter Narcotics Team ("CNT") . (Id. at ¶ 11.) After the demerger, Plaintiff began working for the Savannah Police Department ("SPD"). (Id. ¶ 10.) Plaintiff was among a small group of officers who were involuntarily assigned to SPD's Central Precinct Patrol Division. (Id. at ¶ 12.) Plaintiff and other officers were later assigned to the Special Investigation Section ("SIS"), a department devoted to conducting jurisdiction-wide warrant service in Savannah. (Id.) Neither Plaintiff nor the other officers who were transferred to SIS from the county CNT received any notice or explanation for their transfers. (Id.)
SIS had limited resources, equipment, and personnel. (Id. at ¶ 13.) In July 2019, only four personnel members were assigned to SIS, although at least six members were necessary for their missions. (Id.) The SIS officers also lacked equipment critical to their roles, including unmarked vehicles, surveillance equipment, access to MobileCom, and a sufficient number of portable and desktop computers. (Id.) Plaintiff and his superior Sergeant Octavio Arango expressed concerns about the lack of personnel and resources on numerous occasions. (Id. at ¶ 14.) Despite inadequate communication and guidance from SPD leadership, Plaintiff and other SIS officers drafted policies and guidance to assist SPD leadership in developing rules and regulations for SIS. (Id. at ¶ 15.) SPD leadership ignored the proposed policies and did not attempt to create policies for SIS. (Id.)
In July 2019, an Internal Affairs ("IA") investigation was opened into Officer Adrian Gates, an African American officer assigned to the Gang Unit, and his alleged association with suspected gang members. (Id. at ¶ 25.) At the time of this investigation, two other IA investigations into Officer Gates's conduct were pending. (Id. at ¶ 26.) Additionally, a separate IA investigation already concluded that Officer Gates violated two SPD policies. (Id.) In the most recent investigation, Officer Gates was accused of violating several SPD policies for failing to report his findings after visiting suspected gang houses and warning suspects about police raids. (Id. at ¶¶ 27, 28.) Officers also found a fake urine product often used to pass drug tests in Officer Gates's car. (Id.)
At the conclusion of the IA investigation, the discipline review board found that Officer Gates had violated the SPD policies as alleged and recommended termination as the appropriate discipline. (Id. at ¶ 29.) Chief Minter reviewed the IA investigation and sustained the allegations against Officer Gates. (Id. at ¶ 30.) However, Chief Minter rejected the discipline review board's recommendation of termination and instead placed Officer Gates on a 40-hour suspension. (Id.) Two weeks later, Officer Gates was taken off administrative leave, and he returned to full-duty status. (Id. at ¶ 31.) Plaintiff alleges that Chief Minter's treatment of Officer Gates's investigation is one of many examples of Chief Minter treating Black officers more favorably than non-Black officers like Plaintiff, who is Asian. (Id. at ¶¶ 32, 130.)
On April 10, 2020, 75 members of the SPD, including all members of SIS, signed a group Human Resources ("HR") complaint (the "Group Complaint") which included 22 separate complaints against Chief Minter. (Id., at ¶ 33.) In the Group Complaint, the complaining officers alleged that Chief Minter had engaged in, inter alia, corruption, favoritism, and disrespect towards SPD officers. (Id. at ¶¶ 35, 36.) The Group Complaint was submitted on April 15, 2020. (Id. at ¶ 34.) Jeffery Grant, HR Director for the City of Savannah, confirmed receipt of the Group Complaint on April 25, 2020, stating that additional information would be sent out on April 29, 2020. (Id.)
Also on April 10, 2020, Plaintiff submitted an individual HR complaint (the "Personal Complaint") against Chief Minter and Assistant Chief Stephanie Price. (Id. at ¶ 37.) In the Personal Complaint, Plaintiff stated that he had been subjected to a hostile work environment and that “[t]he situation caused significant grief, anguish, and is a significant contributing factor to [his] moral, mental and physical health." (Id. at ¶ 38.) Plaintiff also complained about Chief Minter's failure to provide adequate resources, communication, or personnel to the SIS. (Id. at ¶ 39.) Plaintiff contended that the allegations outlined in the Personal Complaint "show[ed] a pattern of decisions targeted either against [him]self or like-minded officers despite any failure in conduct, work ethic, or other reasons of merit." (Id. at ¶ 40.) Plaintiff also warned that "[a]ny negative actions taken to my rank, position, the units I am a part of, or the members of aforementioned units will be assumed [to be] retaliation for my participation in this process." (Id.) HR assured the complaining officers that it was seeking a third party to review the complaints; however, HR requested that the complaints be sent directly to the department. (Id. at ¶ 41.) Jeffery Grant eventually retained attorney Susan Cox to review the complaints against Chief Minter. (Id' at ¶ 42.)
On April 14, 2020, four days after signing the Group Complaint and submitting his Personal Complaint, Plaintiff was involved in an incident during the execution of an arrest warrant on Kahlil Kelly. (Id. at ¶ 46.) Mr. Kelly had violent felony arrest warrants pending for aggravated assault, battery, and obstructing a 9-1-1 call. (Id.) When SIS approached Mr. Kelly's apartment, officers observed a Black female and a Black male, later identified as Darryl Faitele, look at the officers and slam the apartment door shut. (Id. at ¶ 47.) The SIS officers believed Mr. Faitele was Mr. Kelly because of their similarities in height, weight, age, and skin complexion, and because Mr. Faitele fled into the apartment where police believed Mr. Kelly was residing. (Id. at ¶ 48.) The SIS officers entered the apartment and asked for Mr. Kelly to come outside. (Id. at ¶ 50.) Mr. Faitele responded to the name Kelly and walked towards the officers. (Id.) After Mr. Faitele refused officers' repeated instructions to get on the ground, Plaintiff placed Faitele on the ground. (Id. at ¶ 51.) Mr. Faitele's chin was injured in the process, and Plaintiff called EMS to evaluate the injury. (Id. at ¶ 52.)
Plaintiff checked Mr. Faitele's wallet and found identification that suggested the individual was Darryl Faitele rather than Kahlil Kelly. (Id. at ¶ 54.) After the other SIS officers gained control of the situation inside the apartment, Plaintiff informed his team members about the identification he found in Mr. Faitele's wallet. (Id. at ¶¶ 56, 58.) However, the officers could not immediately verify Mr. Faitele's identity because SIS did not have MobileCom access to obtain this information. (Id. at ¶ 58.) As a result, Mr. Faitele's information had to be verified through dispatch, which could not safely be accomplished until after the officers cleared the apartment. (Id.)
Once he was handcuffed, Mr. Faitele began to swear at the officers and became disorderly. (Id. at ¶ 53.) Mr Faitele also began spitting at the officers with blood in his mouth. (Id. at ¶ 60.) At one point, Plaintiff felt a spray of moisture against the side of his face. (Id.) Plaintiff became concerned because of the possible diseases caried in blood and saliva. (Id. at ¶ 61.) Additionally, the SIS officers had not been provided with masks to minimize their exposure to COVID-19. (Id.) To prevent Mr. Faitele from spitting on the officers, Plaintiff pulled Mr. Faitele's shirt over Mr. Faitele's face for a short time. (Id. at ¶ 63.) Sergeant Arango also tied a shirt around Mr. Faitele's mouth, but the shirt became untied shortly thereafter and fell to the ground. (Id.) Eventually, an ambulance arrived and transported Mr. Faitele to Candler Hospital. (Id. at ¶ 65.) The SIS officers decided against arresting Mr. Faitele at that time but planned to later obtain an arrest warrant for simple battery and...
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