White v. Fraternal Order of Police, Civ. A. No. 88-0679-OG.

• Decision Date: 16 February 1989
• Docket Number: Civ. A. No. 88-0679-OG.
• Parties: Robert C. WHITE, Plaintiff, v. FRATERNAL ORDER OF POLICE, Defendants.
• Court: U.S. District Court — District of Columbia

707 F. Supp. 579

Robert C. WHITE, Plaintiff, v. FRATERNAL ORDER OF POLICE, Defendants.

Civ. A. No. 88-0679-OG.

United States District Court, District of Columbia.

February 16, 1989.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter E. Derry, Pyne & Derry, Chevy Chase, Md., for plaintiff.

Dennis Davison, David & Hagner, Washington, D.C., for defendant FOP.

Kevin T. Baine, Williams & Connolly, Washington, D.C., for defendants Washington Post and NBC.

MEMORANDUM

GASCH, District Judge.

INTRODUCTION

This is a case brought by plaintiff Robert C. White ("White"), a Captain in the Washington Metropolitan Police Department ("MPD"), alleging invasion of privacy and defamation against the Fraternal Order of Police ("FOP"), the Washington Post Company ("the Post"), and the National Broadcasting Company, Inc. ("NBC").

BACKGROUND FACTS

The parties have substantial disagreement about the relevance of certain facts to the issues in this case; nonetheless, the following facts are not in dispute.

In April 1985, White was nominated for promotion from the position of Lieutenant to Captain in the Washington Metropolitan Police Department. As a condition of promotion, plaintiff was required to undergo and pass a physical examination, including a urine test for drugs. On May 30, 1985, White submitted a urine sample for drug testing at the Police and Fire Department Clinic ("the Clinic"). Plaintiff's urine sample, identified only by a number, along with other samples, was tested at the Clinic using an Enzyme Multiple Immunoassay Test ("EMIT test"). The test performed on plaintiff's sample indicated a positive result for cannabis (marijuana).¹ White was notified of the positive result and he was instructed to return to the clinic to submit a second urine specimen. The standard operating procedure when an EMIT test result was positive was simply to forward the sample to the CompuChem, Inc. laboratory in North Carolina for confirmation of the EMIT test results. Plaintiff's submission of a second urine sample was not in accordance with the standard operating procedure at the Clinic.²

Plaintiff's urine samples were subsequently hand carried by a member of the MPD to the CompuChem laboratory in North Carolina. Hand delivery of urine samples to the CompuChem laboratory was also a departure from normal procedure. The laboratory determined both of plaintiff's urine samples to be free of drugs. White was then promoted to Captain, and later became head of the Police Department's narcotics squad.

Sometime in 1987, Mrs. Marguerite Anastasi and Officer Vernon Richardson, two employees of the Police and Fire Clinic who were involved with the MPD drug testing program, contacted defendant Fraternal Order of Police and informed the FOP of several irregularities they had observed in MPD drug testing procedures. Among other things, these employees related specific details about the circumstances surrounding the performance of plaintiff's drug tests and the handling of plaintiff's urine samples. Counsel for the FOP, Robert E. Deso, reported the employees' allegations to the United States Attorney for the District of Columbia, Joseph DiGenova, by letter dated July 15, 1987. Officer Gary W. Hankins, Chairman of the FOP, reported the allegations to Mayor Marion S. Barry, Jr., by letter dated July 28, 1987.³ These letters form the basis of White's claims against the FOP.

After an introductory paragraph, both letters review the background of Mrs. Anastasi and Officer Richardson. Mrs. Anastasi, a civilian employee of the MPD for 24 years, was involved with drug testing procedures at the Clinic since the inception of the program in 1982. At the time of plaintiff's test in 1985, she supervised the officers who conducted EMIT drug testing at the Clinic. Letters at ¶ 2. Officer Vernon Richardson, who was appointed to the MPD in 1973, conducted the great majority of the EMIT drug tests performed at the Clinic since 1984. Officer Richardson conducted the EMIT test that was performed on plaintiff's first urine sample on May 30, 1985. Letters at ¶ 3.

The letters go on to describe in great detail the events that transpired on May 30, 1985, the date on which plaintiff's urine test was performed, from the perspective of Officer Richardson. In addition to the irregularities discussed above, the letters also state several other important pieces of information regarding the handling of plaintiff's urine sample. The letters allege that Lieutenant Noyes, an officer superior to Officer Richardson, became very agitated upon discovering the identity of the individual who had provided the positive EMIT test.⁴ After plaintiff was brought back to the Clinic and a second sample was collected, Lieutenant Noyes also allegedly stated to Officer Richardson, "I am giving you a direct order not to tell anyone about what went on." Letters at ¶ 7. The letters also allege that on the morning of May 31, 1985, before the samples were forwarded for confirmation, the officer who opened the drug lab discovered that the top lock on the laboratory door was unsecured. Letters at ¶ 9.

The letters further state that it was "highly unusual" that plaintiff's urine sample was not confirmed by the CompuChem lab because the EMIT test on plaintiff's first urine sample quantitatively indicated a high level of THC.⁵ Mrs. Anastasi reported that she was advised about what transpired by Officer Hayes, who was also present at the Clinic on May 30, 1985. Mrs. Anastasi stated that she attempted to discuss the events of May 30 with the Administrative Director of the Clinic, but he refused to speak to her about the matter. Letters at ¶ 10. The letter also states that Officer Richardson, while testifying as a representative of the Clinic in an MPD adverse action hearing, "was shocked" to see the plaintiff sitting as a member of the Adverse Action Panel. Letters at ¶ 11.

The letters go on to make several allegations which bear no apparent relationship to the plaintiff. The letters allege that a Sergeant Kent Pulliam reportedly remarked that Lieutenant Noyes and a Sergeant John Harding "had on more than one occasion covered up for MPD officials who submitted urine samples for drug testing which resulted in pending positive tests." Letters at ¶ 11.

The letters also report that since February 1987, several administrative changes occurred at the Clinic, which in the opinions of Officer Richardson and Mrs. Anastasi, "severely compromised the integrity of the drug program." Letters at ¶ 12. The letters also indicate that Officer Richardson reported a number of problems to MPD officials including a deliberate falsification of a record. Letters at ¶ 12. The letters also allege that Officer Richardson has been ordered by Lieutenant Irish (who replaced Lieutenant Noyes) "not to discuss his complaints with anyone." Letters at ¶ 12.

Additionally, the letters state that in June 1987, "Officer Richardson discovered that seven consecutive dates of drug screening records were missing from the files." Letters at ¶ 13. The letters indicate that Officer Richardson and Mrs. Anastasi believe that the records were removed for an improper purpose. Id.

The letters also state that "Officer Richardson and Mrs. Anastasi are convinced that there is a systematic effort to subvert the integrity of the drug testing procedures at the Police and Fire Clinic and to manipulate the procedures so that desired results can be obtained." Letters at ¶ 14. The letters further state:

While it appears that drug testing procedures have been subverted to protect one and possibly more MPD officials from the results of positive urinalysis tests, it is also quite possible that procedures have been subverted to report positive results on certain individuals whose tests may not have been positive, thus causing them to lose their employment. If the system has been corrupted, the ramifications are wide-spread. If records have been falsified, false statements made, or testing procedures subverted for gain (such as promotion), it is likely that criminal as well as ethical violations have been committed.

Letters at ¶ 14. The above paragraph concludes with a footnote that states that possible statutory violations include bribery, tampering with physical evidence, and breach of standards of conduct. The letters conclude with a promise of cooperation on behalf of Mrs. Anastasi and Officer Richardson. Letters at ¶ 15.

Upon receipt of the letter of July 28, 1987, Mayor Barry referred the matter to the Chief of Police, who created a special investigative committee ("the Cox Committee") to examine the allegations contained in Officer Hankins' letter to the Mayor.⁶ The Committee consisted of Assistant Police Chief Ronal D. Cox, Assistant Police Chief Melvin C. High, and Assistant General Counsel Terrence D. Ryan. The Committee conducted an extensive investigation and issued a report to the Chief of Police in December 1987. The Committee found that police officials had deviated from standard operating procedures in securing a second urine sample from White after the initial screening test was positive, in failing to conduct an initial screening test on White's second specimen before sending it to the laboratory in North Carolina for testing, and in having police officers carry the samples to North Carolina. As a result of the Cox Committee's findings and recommendations, Police Chief Turner reprimanded his Assistant Chief, the Director of the Department's Internal Affairs Division, and an official of the Police Clinic.

The defendant the Washington Post published articles on August 25, September 19, 22, and 24, November 20, 1987, and January 16, 17, 22, and 25, 1988 concerning the FOP's allegations and the Cox Committee's investigation of those allegations. These articles form the basis of White's claims against the Post. Three of the articles that discussed the specific circumstances surrounding plaintiff's urine testing indicated that a...