Wagner v. City of Holyoke
| Decision Date | 19 June 2000 |
| Docket Number | Civil Action No. 98-30170-MAP. |
| Citation | 100 F.Supp.2d 78 |
| Parties | Robert WAGNER and Margaret Wagner, Plaintiffs, v. CITY OF HOLYOKE, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Stewart T. Graham, Jr., Hampden, MA, for Plaintiffs.
Harry L. Miles, John J. Green, Jr., John H. Fitz-Gibbon, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, Michael R. Salvon, Timothy F. Murphy, National Ass'n of Government Employees, Springfield, MA, for Defendants.
Cornelius J. Moriarty, II, Moriarty & Wilson, Holyoke, MA, for Objector.
MEMORANDUM REGARDING PLAINTIFFS' RENEWED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Before the court is plaintiffs' renewed motion for a temporary restraining order and preliminary injunction, seeking to enjoin the defendants from enforcing, imposing, or maintaining discipline against Robert Wagner based on certain Holyoke Police Department rules and regulations. Plaintiff contends that these rules and regulations are unconstitutional on their face and/or as applied to him.1 For the reasons stated below, the court will allow the preliminary injunction in part.
Plaintiff Robert Wagner ("Wagner") has been in the Holyoke Police Department since 1975. He was promoted to Sergeant in 1983 and served as Chief of Police from July 1991 to September 1994, after which he resigned and resumed his duties as Sergeant.
In January 1995, defendant Stephen Donoghue was appointed Chief of Police. Later that year, the Massachusetts Attorney General's ("AG") office and Massachusetts Commission Against Discrimination ("MCAD") began investigating the Holyoke City Police Department for various wrongdoings. At that time, Wagner began cooperating with these investigations.
On March 3, 1997, the police department suspended Wagner for three days without pay for discussing departmental matters with Thomas Vannah of the Valley Advocate newspaper. Wagner's actions allegedly violated rules 1.6, 1.24 and 1.26 of the Holyoke Police Department Rules and Regulations.2 These rules prohibit conduct unbecoming of a police officer (1.6), publicly criticizing the department (1.24), and publicly criticizing other members of the department (1.26).
On the same day, the Department suspended Wagner for an additional five days without pay. This suspension was for providing an arrest report, an ostensibly confidential document, to the same Advocate reporter. This suspension was based on the same three rules.3
On March 4, 1997, the Department suspended Wagner for another five days without pay. This time he allegedly provided data from a confidential internal affairs report to the same Advocate reporter. This suspension was based again on rules 1.6, 1.24 and 1.26. In this case, violations of rules 1.95, 1.71, 1.58 and 1.130 were also cited as a basis for the sanctions. The latter rules regulate the release of information to the press (1.95), prohibit making false or misleading statements (1.71), prohibit releasing confidential information about departmental actions or movements (1.58), and prohibit removing departmental records (1.130).4
On May 29, 1998, Wagner was suspended for obtaining and discussing publicly a report containing evidence that a Holyoke police officer had physically and verbally abused an arrestee. The grounds for this suspension were rules 1.6, 1.25, 1.30, 1.31, 1.32, and 1.95. Rule 1.25 prohibits officers from holding themselves out as spokespersons for the department, and Rule 1.30 requires officers to treat the Department's official business as confidential. Rules 1.31 and 1.32 prohibit an officer from interfering with another officer's official business and from conducting investigations, not otherwise part of his or her official duties, without permission.
Finally on August 3, 1998, Wagner was suspended for three days for making critical comments about a fellow officer in pleadings before the Massachusetts Labor Relations Commission. This suspension was based rules 1.24, 1.26 and 1.30.
Plaintiffs filed a complaint against the City of Holyoke and others in state court on June 3, 1998, alleging, in part, that defendants violated Robert Wagner's free speech rights under state and federal constitutions. In particular, Wagner alleged that defendants improperly used the Department's rules and regulations to retaliate against him for cooperating with the AG's office and the MCAD in their investigations of wrongdoing by the individual defendants and the Holyoke police department. The complaint, which includes a variety of state tort claims as well,5 was eventually removed to federal court.
On April 30, 1999, plaintiff moved for a preliminary injunction to enjoin the defendants from enforcing, imposing, or maintaining any discipline based on the above-cited Holyoke Police Department rules and regulations. Plaintiff argued that these regulations were unconstitutional on their face and/or as applied to Wagner.
On May 6, 1999, this court heard argument on the motion. However, at that time the parties agreed to brief the issues further and to return at a later date. Moreover, they agreed to hold in abeyance a pending civil service hearing and certain appeals pending this further briefing.
On May 26, 1999, counsel appeared again before this court to argue plaintiff's motion. At this time counsel agreed to attempt to negotiate revisions to the existing rules and regulations. Once more, counsel agreed to hold in abeyance pending proceedings until these negotiations were complete.
On July 21 and July 22, 1999, counsel for defendants and for plaintiff filed their written reports regarding the status of their negotiations. Both counsel indicated that discussions were constructive and that much progress was made towards agreed revisions. Unfortunately, despite best efforts, a final agreement could not be reached.
On August 27, 1999, this court denied plaintiff's motion for preliminary injunction without prejudice. See Memorandum and Order, Docket No. 39. The court concluded that "given the somewhat fluid nature of the situation, and the subtle balance between plaintiff's First Amendment rights and defendants' need for appropriate regulations, plaintiff's counsel's suggestion ... [to allow defendants] to make final determinations as to the implementation of the [police department's] new rules and regulations ... is eminently sensible." Id. at 3. Hence, the court ordered defendants to proceed promptly in finalizing their new rules and regulations and to report to the court as soon as those rules and regulations were in place or provide a status report. See id.
Plaintiff now renews his motion in light of defendants' communication to him and the court that defendants will need one year to adopt and implement the new rules and regulations. See letter dated September 29, 1999, Docket No. 41. Plaintiff argues that defendants are delaying the implementation of the new rules to drag out their retaliation against him. Plaintiff asks this court (1) to preliminarily enjoin defendants from using certain regulations as a basis for disciplining him, (2) to order defendants to expunge any disciplinary actions previously imposed pursuant to such regulations, and (3) to declare such regulations unconstitutional on their face and/or as applied to plaintiff.
Four criteria govern the decision to grant or deny a preliminary injunction. Langlois v. Abington Housing Authority, 207 F.3d 43, 47 (1st Cir.2000). The district court "must consider (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant [defendants] if enjoined as contrasted with the hardship to the movant [plaintiffs] if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996).
In a case such as this one, where the alleged injury is a threat to First Amendment interests, "the finding of irreparable injury is often tied to the likelihood of success on the merits." Playboy Entertainment Group, Inc. v. United States, 945 F.Supp. 772, 782 (D.Del.1996), aff'd, 520 U.S. 1141, 117 S.Ct. 1309, 137 L.Ed.2d 473 (1997). See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987). The loss of First Amendment freedoms unquestionably constitutes irreparable injury. See Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). See also Romero Feliciano, 836 F.2d at 4. Thus, if it is not likely that plaintiff will succeed on the merits, it is equally unlikely that he will suffer irreparable harm. That is to say, "[c]onstitutional injury cannot occur if there is not a constitutional violation." Playboy, 945 F.Supp. at 783. Therefore, the inquiry must begin with plaintiff's likelihood of success on the merits.
Plaintiff claims that the Holyoke Police Department rules and regulations, used as a basis for disciplining him, violate his First Amendment right to free speech. He argues that he is likely to succeed on the merits under one or both of two theories. First, he argues that some of the rules, specifically rules 1.6, 1.24, 1.26, 1.30, 1.58, and 1.95, are unconstitutional on their face as overly broad or vague. Second, he argues that these and the remaining rules used to discipline him are also unconstitutional as applied to him under the standard set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
Because the record at this time is insufficient for an analysis of the Pickering elements, the court will address only the merits of plaintiff...
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