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AUSTIN v. NEAL

June 3, 1996

BRIAN AUSTIN
v.
RICHARD NEAL, THOMAS J. NESTEL, THOMAS SEAMON, RICHARD ZAPPILE, RAYMOND ROONEY AND THE CITY OF PHILADELPHIA



The opinion of the court was delivered by: WALDMAN

 WALDMAN, J.

 June 3, 1996

 I. Background

 This 42 U.S.C. § 1983 civil rights action arises from plaintiff's suspension and subsequent dismissal from the Philadelphia Police Department after he fatally shot a homeless man during a confrontation while on duty. Plaintiff claims that the manner in which he was suspended violated his right to procedural due process, and that the adverse employment actions violated his substantive due process right to "self-preservation" which "underpins the Second Amendment" and to continued public employment. Plaintiff also claims that statements of defendant Neal at and after the time of plaintiff's suspension infringed a liberty interest in his reputation, and asserts a pendent cause of action for defamation under state law as well. Presently before the court is defendants' motion for summary judgment.

 II. Legal Standard

 In considering a motion for summary judgment, the court determines whether the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). Only facts that may affect the outcome of a case under applicable law are "material." Anderson, 477 U.S. at 248. All reasonable inferences from the record are drawn in favor of the non-movant. Id. at 256. Although the movant has the initial burden of demonstrating an absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 III. Facts

 The pertinent facts from the evidence of record are relatively straightforward and as uncontroverted or otherwise viewed in a light most favorable to plaintiff are as follow.

 Plaintiff became a permanent civil service employee on February 24, 1987, serving as a Philadelphia police officer. While on duty on May 19, 1993, plaintiff fatally shot Kenneth McClary, a homeless man who was acting erratically, had struck plaintiff with a bottle and who held another bottle in his hand. Plaintiff, accompanied by counsel, appeared as requested at the Police Department's Internal Affairs Division (IAD) on Friday, May 21st for questioning concerning the shooting. Lt. James Hodgen of the IAD advised plaintiff that:

 We are questioning you concerning an incident that occurred on Wednesday, 5-19-93, at or about 7:56 AM, at 605 S. 20th Street. The investigation of this incident has determined that you fatally shot Kenneth McClary, 36/B/M. As this incident may be a criminal matter, I have a duty to inform you that you have the following rights . . .

 Lt. Hodgen then advised plaintiff of his Miranda rights. Plaintiff stated that he wished to remain silent. Lt. Hodgen had been instructed to have plaintiff return to the IAD the following Monday if he declined to make any statement. Lt. Hodgen did so and the proceeding was concluded.

 On May 23, 1993, plaintiff was admitted to Horsham Clinic. He had post-traumatic stress disorder, physical symptoms secondary to acute anxiety and psychosocial stressors. The next morning plaintiff's attorney telephoned Lt. Hodgen to inform him of plaintiff's hospitalization and inability to attend the meeting. At Lt. Hodgen's request, counsel appeared at the IAD that afternoon where he was presented with a notice of plaintiff's suspension with intent to dismiss. The notice stated that the Police Commissioner had made the decision as a "result of your actions on May 19, 1993" and that "due to the inability to present you with this document personally, your attorney, Jeffery Minehart, has agreed to accept this on your behalf." The notice is signed by Lt. Hodgen and Mr. Minehart "for" Sgt. Brian Austin. The decision to proceed in this manner was made upon advice from the Department's legal counsel.

 Mr. Minehart did not deliver the notice to plaintiff, who first learned of his suspension from a newspaper article the following day. *fn1" On June 11, 1993, plaintiff was discharged from Horsham Clinic. The same day, defendant Neal issued to plaintiff a written notice of intention to dismiss him. *fn2"

 Commissioner Neal detailed the reasons for the dismissal in the notice. He clearly and cogently stated that plaintiff had violated Department standards for the use of deadly force when he "did not exhaust all reasonable means of apprehension and control before using deadly force," particularly given the "manpower and resources available." The Commissioner cited specific Departmental directives regarding the use of deadly force which he concluded plaintiff had violated. The Commissioner advised plaintiff in writing that if he believed the intended personnel action was unjustified, he could appeal to the Commissioner within ten days and present facts and reasons in support of such a belief. Plaintiff never contacted the Commissioner.

 On June 17, 1993, the Fraternal Order of Police filed a grievance challenging the suspension with intent to dismiss under its collective bargaining agreement with the City. An arbitrator ruled on May 12, 1995 that plaintiff should be reinstated with back pay. *fn3" On September 8, 1993, the City agreed to pay $ 300,000 to settle a § 1983 wrongful death claim asserted in this court against it and plaintiff Austin by Mr. McClary's mother. *fn4" Before reaching his decision, the Commissioner and his co-defendants consulted several times. They reviewed information from an investigation by IAD and homicide unit officers, including summaries of statements of witnesses and investigators, physical evidence and a diagram of the scene with pertinent locations and distances noted. Defendants Nestel and Seamon recommended plaintiff's dismissal and neither defendant Rooney nor Zappile disagreed. It reasonably appears that plaintiff nevertheless was justified in firing the fatal shot based on the totality of evidence ultimately adduced, including statements of witnesses who changed their initial versions and plaintiff's account provided in arbitration proceedings the following year including his stated unawareness of the presence of more than one other officer at the scene.

 The Mayor was "concerned" and the Commissioner "upset" by the number of police shootings. The Mayor had encouraged the Commissioner to be more communicative about his efforts to discipline errant officers. Apparently, members of City Council were also concerned.

 On May 20, 1993, an ordinance was passed by the Philadelphia City Council establishing a civilian review board to oversee the handling of complaints of police misconduct and the discipline administered to any officers involved in such conduct. Defendant Neal was opposed to the establishment of such a board because he "felt the Department was capable of investigating those cases on their own."

 On May 24, 1993, Commissioner Neal publicly announced plaintiff's suspension for failing to "exhaust all reasonable means before resorting to deadly force." He said the action showed "that the Police Department is prepared to examine all issues relative to any kind of misconduct and prepared to take the appropriate action in those situations."

 Mayor Rendell vetoed the civilian review board ordinance on June 3, 1993. In his veto message, the Mayor cited defendant Neal's direct action to dismiss 18 officers since his appointment as Commissioner on August 21, 1992. The Mayor stated that "these numbers prove that the Police Department is doing both a better job of reducing civilian complaints as well as a better job of cracking down on officers who do have complaints lodged against them."

 Since 1990, there were forty-six fatal police shootings which did not result in charges of violations of Department policy against the officers involved. Less than half of these incidents occurred during Commissioner Neal's tenure, as did two in which officers were disciplined and six in which there are open investigations.

 Following the arbitration ruling in May 1995, defendant Neal was quoted in news accounts as saying "We dismiss these people for the right reasons, and time and time again we're forced to take these people back. It's frustrating in the sense of trying to manage the department, and in terms of handing out appropriate discipline and in ridding the department of people who should not be part of it." Unidentified "city officials" were characterized in these accounts as "furious" over the arbitrator's ruling and concerned that it would undermine Commissioner "Neal's efforts to limit police shootings and enforce discipline." The news accounts noted that at least nine other fired officers won reinstatement rulings from an arbitrator in the past three years. One account reiterated the alleged misdeeds of several of these officers which included palpably criminal conduct.

 IV. Discussion

 A. PROCEDURAL DUE PROCESS

 It is undisputed that as a permanent civil service employee, plaintiff had a property interest in his employment and that a "suspension with intent to dismiss" triggers procedural due process protection. The issue then is whether the procedure employed by defendants was constitutionally adequate.

 Public employees faced with suspension with intent to dismiss are entitled to notice of the charge against them and an opportunity to respond. Gniotek v. City of Philadelphia, 808 F.2d 241, 243 (3d Cir. 1986), cert. denied, 481 U.S. 1050, 95 L. Ed. 2d 839, 107 S. Ct. 2183 (1987). "To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).

 Notice is sufficient if it apprises the employee of the general nature of the charge and evidence against him, and does so in a manner which is timely under the particular circumstances. Gniotek, 808 F.2d at 244. Plaintiff argues that notice was insufficient because at the May 21, 1993 meeting he was not told that he had violated any specific police policies or that an adverse employment action might be taken ...


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