Local 491, Police Officers v. Gwinnett County, Ga

• Citation: 510 F.Supp.2d 1271
• Decision Date: 07 May 2007
• Docket Number: Civil Action No. 1:06-CV-0303-RWS.
• Parties: LOCAL 491, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, and James Fouchia, Plaintiffs, v. GWINNETT COUNTY, GA. and Charles M. Walters, individually and in his capacity as Gwinnett County Police Chief, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

510 F.Supp.2d 1271

LOCAL 491, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, and James Fouchia, Plaintiffs, v. GWINNETT COUNTY, GA. and Charles M. Walters, individually and in his capacity as Gwinnett County Police Chief, Defendants.

Civil Action No. 1:06-CV-0303-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

May 7, 2007.

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Lance Warren Tyler, NAGE-IBPO, Atlanta, GA, Mary Janet Huber, Law Office of Mary J. Huber, Decatur, GA, Pamela Johnson, National Association of Government Employees, Atlanta, GA, for Plaintiffs.

Local 491, pro se.

Scott James Fuller, Lawrenceville, GA, for Defendants.

ORDER

STORY, District Judge.

Now before the Court are Plaintiffs' Motion for Partial Summary Judgment [28] and Defendants' Motion for Summary Judgment [32]. After reviewing the record, the Court enters the following Order.

Background

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs James Fouchia and Local 491, International Brotherhood of Police Officers ("Local 491") sue Gwinnett County, Georgia, and its Chief of Police, Charles M. Walters, challenging two conditions of Gwinnett County's' employment of police officers. First, Plaintiffs challenge the constitutionality of a policy prohibiting off-duty police officers from wearing the Gwinnett County police uniform while attending meetings of the Gwinnett County Board of Commissioners. And second, Plaintiffs allege that their First Amendment and Equal Protection rights were violated by an Internal Affairs investigation into allegedly "mutinous" statements made by Officer Fouchia while on-duty.

I. The Parties

Plaintiff James Fouchia is a Police Officer employed by the Gwinnett County Police Department. He also serves as President of Local 491, a union comprised of approximately 181 Gwinnett County police officers holding the rank of Lieutenant or lower. Local 491 is actively involved in political organization and advocacy at the county level, and Officer Fouchia occasionally attends Gwinnett County Board of Commission meetings on behalf of Local 491 to discuss officer pension plans, pay scale, promotions, recruitment, safety, and other issues of concern to both Gwinnett County police officers and the public at large. Defendant Charles M. Walters is the current Gwinnett County Police Chief, and has served in that capacity since 2003.

II. The Uniform Policy

Chief Walters and Gwinnett County maintain a policy that prohibits police officers from wearing the Gwinnett County police uniform off-duty except under limited and specifically approved circumstances. Section 305.10 of the Gwinnett County General Directives Manual ("GDM"), the written code of conduct for Gwinnett County police officers, provides as follows:

The Gwinnett County Police uniform identifies the wearer as a police professional and helps establish a command presence. The uniform should be worn with pride and in a manner that lends itself to consistency from one officer to the next. The uniform is not designated and not intended to be a vehicle for individual expression. Rather is it [sic] intended to provide the officer with clothing and equipment required to meet law enforcement objectives while expressing a conservative appearance for the department. These regulations are established to ensure uniformity and consistency in appearance among those wearing the uniform of the department.

. . . .

The uniform is required to be worn during work, travel to and from work, and while operating a marked vehicle, and is approved for wear only at these times or while engaged in other official police business or functions approved by the Chief of Police.

(See Gwinnett County Police Department GDM § 305.10 (Ex. A to Walters Aff. [32-4]) (emphasis added).)

Gwinnett County police officers are also authorized to wear their uniform while working off-duty in second jobs that relate to the policing function. Rule 418.06 of the GDM provides that "Uniforms, vehicles, radios, issued weapons, and other county equipment may be utilized for [police-related] employment as deemed appropriate and approved by the Division Commander or his designee." (See Ex. 3 to Pl.'s Resp. to Defs.' Mot. for Summ. J. [37-4].)

As a matter of practice, Chief Walters also allows officers to wear their uniforms while running errands or conducting other personal business incidental to the work commute. Gwinnett County police officers may thus visit a grocery store in uniform on their way home from work and conduct other routine errands in uniform. As a general matter, however, officers are prohibited from wearing their uniform to county commission meetings, even if they attend such meetings in between work shifts, unless they are on official business or already at the Lawrenceville public building for a court appearance.

In his Affidavit, Chief Walters says that he enforces the policy against making public appearances in uniform as follows:

A police officer may attend a public meeting [in uniform] if he is (1) on duty; (2) he has official police business at the government building in Lawrenceville; [or] (3) while at the government building he is on a designated break such as a recess from a court proceeding in which he is appearing as a witness. Otherwise, when a police officer is in uniform he is expected to be performing his job duties such as patrolling his assigned zones or investigating criminal cases.

(Walters Aff. ¶¶ 13-14.)

According to Chief Walters, the purpose of the uniform policy is to foster a "command presence." (Id. ¶ 16.) It fosters "public safety because the uniform identifies the officer to citizens in need of assistance, establishes control over suspects and promotes order at emergency and crime scenes." (Id. ¶ 17.) Chief Walters also states that maintaining "[t]he integrity of the department in the eyes of the citizens and the governing body is essential to its ability to carry out its law enforcement responsibilities." (Id. ¶ 20.) In order to "ensure that the department as a whole will be viewed by the public and the commissioners as neutral on political issues, in political forums, and in matters of importance to the entire department," Chief Walters allows only one spokesperson for the department to address the Board of Commissioners. (Id. at 21.)

Prior to 2003, under Gwinnett County's former Chief of Police, Officer Fouchia attended public meetings in uniform without objection, even though he was admittedly off-duty and not speaking on behalf of the Gwinnett County Police Department. In 2003, however, after Defendant Walters became the Chief of Police, he announced that officers were not permitted to adorn their police uniform while attending meetings of the Board of Commissioners in their private capacities.

Plaintiffs maintain that the policy enforced by Chief Walters violates the First Amendment because it burdens their freedom to speak on matters of public concern and dilutes the political message they seek to convey at public meetings.

III. Internal Affairs Investigation

In their second allegation, Plaintiffs assert that Defendants unconstitutionally inquired into their off-duty union activity while investigating allegedly "mutinous" statements made by Officer Fouchia while on duty. Officer Fouchia also claims that Defendants violated his rights under the Equal Protection Clause because Internal Affairs failed to notify him of the inquiry or offer him the opportunity to respond.

In November 2004, Officer James Jenkins reported overhearing Officer Fouchia saying, while on duty in the Northside Precinct, that he' was actively involved in recruiting and interviewing candidates for police chief to potentially replace Chief Walters. Officer Fouchia allegedly stated that he was assigned that task by the newly elected Chair of the Gwinnett County Board of Commissioners, and he "had to work all night and stay up the next day because he was picking up candidates for Police Chief who were flying in from the Chicago Airport ... the next day." (See Pl.'s Resp. to Defs.' St. of Mat. Facts [37-5] ¶¶ 15-16.) Officer Fouchia also allegedly said that he was directed to "decide who, among the persons interviewed, he would like to pick as the next chief." (See Pl.'s Resp. to Defs.' St. of Mat. Facts [37-5] ¶ 19.)

Officer Jenkins reported what he heard at the Northside Precinct to Assistant Police Chief Daniel Bruno and Chief Walters. Because "[t]he statements attributed to Fouchia by Jenkins concerned [Chief Walters] because it appeared an unranked patrol officer threatened to foster mistrust, impair morale, and create factions among the officers," Chief Walters reported the matter to the Internal Affairs/Professional Standards Unit of the Gwinnett County Police Department for further investigation. (Walters Aff. ¶ 31.)¹ Shortly thereafter, Internal Affairs initiated an "inquiry" into Officer Fouchia's conduct and statements.²

Two Internal Affairs investigators, Sergeant Patrick T. Cronin and a Lieutenant Moulder, began the inquiry into Officer Fouchia's statements to determine whether Officer Fouchia should be disciplined for engaging in "mutiny" or other conduct unbecoming of a police officer. As a part of their investigation, Sgt. Cronin and Lt. Moulder interviewed three Gwinnett County Police Officers, all of whom were members of the Executive Board of Local 491. The officers were required by Department policy "to answer the questions put to them or face possible disciplinary action for insubordination." (See Pls.'s Stmt. of Mat. Facts, [28-2] ¶ 42; Defs.' Resp. to Pls.'s Stmt. of Mat. Facts [36-11] ¶ 42.)

The Internal Affairs officers first interviewed Sgt. Van Nus, a known member of the Executive Board of Local 491. During the interview, Sgt. Cronin asked Sgt. Van Nus about his participation in the leadership of the Local 491, and whether the Executive Board of the Local 491 had expressed an opinion about whether...