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Fraternal Order of Police v. Tucker

filed: February 17, 1989.

FRATERNAL ORDER OF POLICE, LODGE NO. 5, REGINALD ADAMS, WILLIE CARROLL, BENNIE NOBLE, AND GEORGE SMITH, APPELLANTS
v.
KEVIN M. TUCKER, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE COMMISSIONER, CITY OF PHILADELPHIA, AND THE CITY OF PHILADELPHIA



On Appeal From The United States District Court For The Eastern District Of Pennsylvania, D.C. Civil No. 87-1430.

Stapleton, Scirica and Cowen, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

This case arises from the City of Philadelphia Police Commissioner's decision to suspend with intent to dismiss four city police officers after they refused an order to submit to urinalysis. The officers sued the City and the Commissioner, alleging that the defendants violated their right to procedural due process under the fourteenth amendment, as well as their right under the fourth amendment to be free from unreasonable searches and seizures.

We agree with the district court that the defendants had a reasonable basis for suspecting that the officers were using drugs while on duty, and therefore will affirm the district court's grant of summary judgment in favor of the defendants on the fourth amendment claims. However, because the defendants did not provide the police officers with sufficient information concerning the evidence in possession of the department to permit a meaningful response to the charges against them, we will reverse the district court's judgment in favor of the defendants on the plaintiffs' procedural due process claims, and remand this case to the district court for further proceedings consistent with this opinion.

I.

On February 26, 1986, the Philadelphia police department received an anonymous phone call from a "community leader of West Philadelphia" reporting that numerous residents in that area had observed police officers congregating and behaving unusually behind the tennis courts on the Cobb Creek Parkway at Catherine Street. The caller related that people were afraid of the officers, as they were apparently using drugs and were "acting crazy." App. at 133.

The department's Internal Affairs Division initiated an investigation and began surveilling the area the next day, February 27. After a period of observation ending March 17, the surveillance team determined that four particular officers were spending a substantial amount of time behind the tennis courts. These officers were identified as Reginald Adams, Willie Carroll, Bennie Noble, and George Smith.

Although the surveillance team was able to determine the identity of these officers, it was unable to get close enough to determine specifically what they were doing. On one occasion, the team did observe a small flash of fire, which burned for a few seconds. Upon returning to the site the next day, the team recovered from the ground a partially burned police report, a burned bottle cap, and a straw. The team also observed several instances of "reckless" and one instance of "bizarre" driving. App. at 136.

The recovered items were brought back to the Internal Affairs Division Headquarters in an attempt to determine whether they had been used to consume drugs. However, after a staff inspector contacted the Chief of the Police Department's Chemical Laboratory and was advised that the items would be "worthless as evidence," app. at 157, the items were discarded. Nevertheless, the Internal Affairs Division contacted officers in the narcotics unit, who advised that the items were consistent with the use of "crack." App. at 137-38.

On March 17, officers Adams, Carroll, Noble and Smith were asked to submit to urinalysis at police headquarters. When they refused, the Police Commissioner ordered them to submit to urinalysis. On the advice of their counsel, they refused this order.

The officers were then suspended without pay for 30 days pending dismissal (i.e., suspended with intent to dismiss). Additionally, the police department issued a press release, which included photographs of the officers, stating that the officers had been suspended for refusing an order to submit to urinalysis based on suspected drug use. Stories relating the contents of the press release, including photographs of the officers, were carried in newspapers and broadcast on television news shows.

On April 4, 1986, the officers were served with Notices of Intention to Dismiss. These formal notices charged the officers with refusing to submit to urinalysis, and also added the additional charge of falsifying logs and being off sector.*fn1 The officers had not been informed of the latter charges when they were suspended on March 17.

Pursuant to the collective bargaining agreement between the City and the police officers' union, the police officers filed a grievance on March 17 challenging their suspensions and dismissals. After the grievance was denied by the Police Commissioner, the matter was submitted to binding arbitration as provided in the collective bargaining agreement.

On September 12, 1986, the parties presented their arguments at a hearing before the arbitrator, and on January 27, 1987, the arbitrator issued an award. He sustained the grievance, ruling that the City had no authority under the collective bargaining agreement to order the officers to submit to urinalysis,*fn2 and that the officers had therefore been improperly dismissed for refusing the order. He did find, however, that a thirty day suspension for the other charges was appropriate. The arbitrator's decision was affirmed on appeal to the Court of Common Pleas, and that court's decision was affirmed by the Commonwealth Court.*fn3

The officers and their union filed this action on March 12, 1987, alleging that the officers had been deprived of rights protected by the United States Constitution.*fn4 They claim that the defendants violated their fourth amendment right to be free from unreasonable searches when the defendants demanded that they submit to urinalysis. They also claim that the defendants violated their right to procedural due process when they were deprived of their property interests in their jobs and their liberty interests in their good names and reputations, without a meaningful opportunity to respond to the charges against them.

The district court granted the defendants summary judgment on the fourth amendment claims. After a trial, it entered judgment for the defendants on the claims alleging a deprivation of property and liberty without due process of law. The plaintiffs appeal from these dispositions.

II.

A. Unreasonable Search and Seizure

The plaintiffs assert that the investigation conducted by the department did not give rise to a reasonable suspicion of drug use, and thus did not meet the standard established by this Court in Copeland v. Philadelphia Police Dep't, 840 F.2d 1139 (3d Cir. 1988). We agree that the Copeland standard applies in this case, as the urinalysis was not conducted pursuant to a random drug urinalysis program of the type we have approved in Shoemaker v. Handel, 795 F.2d 1136 (3d Cir. 1986), cert. denied, 479 U.S. 986, 93 L. Ed. 2d 580, 107 S. Ct. 577 (1986), and Policeman's Benevolent Ass'n of New Jersey v. Township of Washington, 850 F.2d 133 (3d Cir. 1988). As we held in Copeland, the appropriate standard is "whether the department had a reasonable suspicion that [a particular officer] was a user of illegal drugs." 840 F.2d at 1143. This standard requires "an objective evaluation of whether reasonable suspicion existed." Id. at 1144. Factors important to such an evaluation include: "(1) the nature of the tip or information; (2) the reliability of the informant; (3) the degree of corroboration; and (4) other facts contributing to suspicion or lack thereof." Id. (quoting from Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 205 (2d Cir. 1984)).

Applying these factors to the present case, we hold that the plaintiffs' Fourth Amendment rights were not violated by their discharge because the Internal Affairs officers had a reasonable suspicion of on-duty drug use to support the urinalysis order. The complaint that precipitated the investigation (1) came from an apparently reliable source, (2) included detailed accounts of observations made by a number of different people on a number of different occasions, and (3) was corroborated in important respects by subsequent surveillance of the scene by the Internal Affairs Officers. As the district court found:

The subsequent surveillance corroborated that the plaintiffs were congregating behind the Cobb Creek Park tennis courts on a regular basis with their car lights turned off, that plaintiffs engaged in fast and erratic driving, and that plaintiffs caused a "brief flash of fire" at a location where paraphernalia used in the making of "crack" was subsequently discovered. This evidence was clearly enough to justify the urinalysis order and, accordingly, warranted summary judgment for the defendants on the Fourth Amendment claim.

B. Deprivation of Property Without Due Process

After trial, the district court made the following findings concerning the process afforded plaintiffs on the morning of March 17, 1986:

1. On the morning of March 17, 1986, each of the plaintiffs, Philadelphia police officers, was taken to the Internal Affairs Division of the Philadelphia Police Department. Upon arriving at the Internal Affairs Division, they were told that there was a complaint of drug use involving police officers; however, they were not told anything specific about the drug use allegations being investigated or the evidence regarding this drug use allegation.

2. Plaintiffs were told that they would be asked questions regarding their on-duty performance and would be asked to substantiate their activities at certain times and places, however, plaintiffs were never asked any questions regarding the performance of their duties.

3. Plaintiffs were told that they would be requested to submit to a urinalysis examination. When told that they would be requested to submit to a urinalysis, plaintiffs asked for the presence of their Fraternal Order of Police (FOP) representative. Plaintiffs were notified individually that the order to submit the urine sample had come directly from defendant Police Commissioner, Kevin M. Tucker. They were warned that disobedience would be disciplined with measures up to and including dismissal.

4. Plaintiffs, acting upon the advice of counsel and their FOP representative, refused the urinalysis request and order given by Captain Kerrigan.

With respect to plaintiffs' opportunity to tell their side of the story prior to the suspensions with intent to dismiss and prior to the press release, ...


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