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Russell Lande v. City of Bethlehem

December 10, 2010


The opinion of the court was delivered by: Schiller, J.


Patrolman Russell Lande alleges that his department and his union turned on him after Lande told a prosecutor that two policemen had manhandled a disabled suspect. Lande's ten-count Amended Complaint brings federal and state law causes of action against the City of Bethlehem, Lieutenant David Strawn, Commissioner Randall Miller, and the Fraternal Order of Police Star Lodge No. 20 arising from Defendants' treatment of him after this incident. Originally assigned to the late Judge Thomas Golden, this matter was transferred to this Court on August 10, 2010. Presently before the Court are Defendants' motions for summary judgment. For the reasons that follow, these motions will be granted with respect to Lande's federal claims. The Court will also decline to exercise supplemental jurisdiction over Lande's state law claims.


A. Lande's Police Career

Lande joined the Bethlehem Police Department ("the Department") on February 14, 1995. (City Defs.' Mot. for Summ. J. Ex. C, Dep. of Russell Lande [Lande Dep.] 10-12.) He has spent his entire career with the Department as a patrolman. (Id. at 474.) Lande has occasionally assumed temporary "acting rank," once performing a shift as acting desk sergeant. (Id. at 179.) His other accomplishments since joining the Department include receiving seven citations, obtaining bachelor's and master's degrees, and spearheading a campaign to build a police memorial. (Id. at 498.)

Lande also had a disciplinary history prior to the events underlying this lawsuit: the Department reprimanded him in 2002 and 2003, placed a number of warning notes in his "tickler file" in 2004, and suspended him for ten days in 2005. The 2002 incident involved Lande's use of a "Mobile Data Terminal" ("MDT"), a police laptop with which officers communicate via text messages. (Statement of Undisputed Material Facts in Support of City Defs.' Mot. for Summ. J. [City Facts] ¶ 90; see also City Defs.' Mot. for Summ. J. Ex. I(a), MDT Transmission Tr. [MDT Tr.].) Using this MDT account, Lande earned a reprimand for commenting in an MDT transmission that dealing with then-Sergeant Thomas Craig, was "like talking to a watermelon." (Lande Dep. 414-16.)

The Department reprimanded Lande again in 2003 for making disparaging remarks about the local ambulance service. (Id. at 421.) Between March and December 2004, the Department documented incidents in Lande's disciplinary file including failure to store evidence properly, hitting a pole with his police cruiser, downgrading offenses in an incident report, and complaining to supervisors that he was not given opportunities to assume acting rank. (Id. at 19, 426; City Defs.' Mot. for Summ. J. Ex. V, Prior Disciplinary Record of Pl. Lande for Traffic Ticket Incidents [Lande Disciplinary Record] 6-7.)

Lande received his most serious punishment in January 2005, when he was suspended for withdrawing a parking ticket. (Lande Dep. 427-28.) Lieutenant Strawn submitted a report in connection with this incident in which he accused Lande of lying about why he had withdrawn the ticket. (Id. at 428-29; Lande Disciplinary Record.) Strawn recommended a thirty-day unpaid suspension and noted that Lande "could technically be charged criminally" and "could have lost his job" for withdrawing the citation. (Lande Disciplinary Record 8-10.) Then-Deputy Commissioner Randall Miller subsequently met with Lande in February 2005 and told Lande that he intended to punish him with a month-long suspension. (Lande Dep. 190-91.) Lande submitted a grievance to his union, the Fraternal Order of Police Star Lodge No. 20 ("the FOP"). He ultimately agreed to serve a ten-day suspension after discussions with police and FOP officials. (Id. at 192, 427-29; Pl.'s Statement of Facts in Opp'n to City Defs.' Mot. for Summ. J. [Lande City Facts] ¶ 44.)

B. The Lopez Arrest

As of April 5, 2005, Lande belonged to the Department's Platoon One and reported to Lieutenant David Strawn. (Lande Dep. 19.) On that day, however, Lande was working overtime with a different platoon supervised by Sergeant Robert Ripper. (Id. at 21-22.) Lande responded to a call at a home in the Bethlehem Marvine Housing Development, a public housing complex. (Id. at 23-25, 28.) He first checked the front of the residence. (Id. at 29.) Finding "nothing going on" there, he went to the rear, where he saw Sergeant Ripper interviewing people. (Id. at 29-30.) Lande also saw a man lying on the ground near a wheelchair. (Id. at 61-62.) He later learned that this man was Reynaldo Lopez. (Id. at 16-17.) Lopez was handcuffed and appeared calm when Lande arrived on the scene. (Id. at 93.) Lande did not know why Lopez was on the ground or why he had been arrested. (Id. at 18, 61.)

Officer Patrick Maczko had pulled Lopez over for driving without a valid license. (City Defs.' Mot. for Summ. J. Ex. P, Dep. of Patrick Maczko [Maczko Dep.] 29.) Police had stopped and cited Lopez for driving without a valid license numerous times before. (Id. at 24-29.) See Lopez v. Maczko, Civ. A. No. 07-1382, 2008 WL 4083016, at *1 (E.D. Pa. Aug. 28, 2008). In his description of the incident, Maczko claimed Lopez was uncooperative. (Maczko Dep. 30-31.) Lopez's brother then appeared and tried to wheel Lopez away. (Id. at 33.) Maczko grabbed Lopez's wheelchair and told Lopez that he was "not free to go," at which point Lopez struck Maczko in the chest. (Id.)

A scuffle ensued during which Lopez held on to his car and refused to let go. (Id. at 33-34.) Maczko was joined by Officer James Freed, who struck Lopez in the wrist with his flashlight. (Id. at 38.) Freed and Maczko then handcuffed Lopez. (Id.) Maczko first noticed that Lande had arrived as he picked Lopez up off the ground and carried him to the patrol car. (Id. at 40.) Maczko responded to a suggestion that he "grab the wheelchair" by saying that Lopez could "fucking walk to the car." (Id.) Maczko claims that he and Lande carried Lopez to his patrol car. (Id.)

Lande asserts that Maczko lied in his report, claiming that it was Freed who helped Maczko drag Lopez across the pavement: "one grabbed him by the arm and the other one grabbed him by the neck." (Lande City Facts ¶ 9; Lande Dep. 63, 67, 88-89) Lopez's legs were dangling as Freed and Maczko dragged Lopez for fifty feet and then "tossed" him into the patrol car. (Lande Dep. 65-66.) Lande did not stop Freed and Maczko from dragging Lopez, but repeatedly told the other officers to "tone it down." (Id. at 68.) One of Lopez's legs, which appeared "really thin" to Lande, was dangling outside the car as Maczko was about to close the car door. (Id. at 56, 71-72.) Lande was concerned that Maczko might "chop the leg off" with the door and grabbed Maczko's arm. (Id.) Lopez eventually worked his way fully into the patrol car and was taken to the police station. (See id. at 72.)

Lande first spoke with Lopez at the police station after the arrest. (Id. at 31-32.) Lopez complained that he had not been permitted to use the bathroom and showed Lande his catheter. (Id. at 34.) Lande helped Lopez use the bathroom and accompanied him to the hospital, as Lopez had requested medical attention. (Id. at 36-37.)

Later that day, Lande confronted Maczko about his use of force during Lopez's arrest. (Maczko Dep. 50.) Maczko responded that Lopez had struck him and that he felt he "didn't do anything to him." (Id. at 51.) Maczko later discussed this conversation with Sergeant Ripper. (Id. at 54.) Maczko did not complete a use of force report for the Lopez arrest, though Freed did. (See Pl.'s Counterstatement of Facts in Opp'n to Union's Mot. for Summ. J. [Lande Union Facts] ¶¶13-14.)

Sergeant Ripper witnessed Lopez's arrest firsthand. (Lande Dep. 70.) Lande approached Ripper shortly after the arrest and asked whether Ripper thought Maczko "was out of control or if it was handled right." (Ripper Dep. 32-33.) Ripper responded that he would probably have moved the patrol car closer to Lopez rather than carried Lopez to the car if he "could do it all over again, Monday morning quarterback." (Id. at 33.) However, Lande did not formally report the incident to the lieutenant in charge of Ripper's squad or to anyone else in the Department at that time. (Lande Dep. 75, 127.) Lande did not file a report because both Ripper and the shift lieutenant had seen Lopez in his wheelchair and knew that he had been taken to the hospital in an ambulance from the police station. (Id. at 140.) Furthermore, Lande believed that Ripper, who had witnessed the arrest, was "taking care of it." (Id. at 82, 98.) Lande also mentioned the incident to roughly a dozen non-supervisory police officers. (Id. at 274-75.)

C. The Lopez Trial

As a result of his encounter with Maczko and Freed, Lopez was charged with aggravated assault, simple assault, terroristic threats, harassment, resisting arrest, disorderly conduct, and driving with a suspended license. (City Defs.' Mot. for Summ. J. Ex. G, Common Pleas Tr. [Lopez Hr'g Tr.] 16.) Lande was subpoenaed to appear at a preliminary hearing prior to Lopez's trial, apparently because Maczko had identified Lande as a witness to the Lopez arrest in his report. (Lande Dep. 87-88.) However, at Maczko's request, Lande left the hearing and did not testify. (Id. at 84-87.) The district attorney's office subpoenaed Lande to appear at Lopez's trial. (Lopez Hr'g Tr. 2.) The Department requires officers to respond to such subpoenas and to cooperate with the district attorney's office. (City Defs.' Mot. for Summ. J. Ex. X, Deposition of Commissioner Randall Miller [Miller Dep.] 156.) Lande appeared pursuant to the subpoena. However, Lande spoke privately with John Obrecht, the assistant district attorney assigned to the Lopez case, prior to the start of jury selection. (City Defs.' Mot. for Summ. J. Ex. F, Dep. of John Obrecht [Obrecht Dep.] 78.) As a result of this conversation, Obrecht spoke with his superior, District Attorney John Morganelli, and with the Department's court liaison officer Jerry Kametz.*fn1 (Obrecht Dep. at 71.) Obrecht promptly disclosed to the trial judge and Lopez's defense counsel that Lande had told him he disagreed with Maczko's handling of the arrest. (Lopez Hr'g Tr. 5.) As a result, the district attorney's office dropped all but the disorderly conduct charge, to which Lopez pled guilty. (Id. at 6.)

D. The MDT Incident and Lande's Suspension

A month after the Lopez trial, Lande accused Freed of using excessive force on a "cripple" during an MDT exchange (MDT Tr.) Back in the Department garage after their shifts, Freed approached Lande "[b]ecause he wanted to fight," forcing Lande to retreat into the station house.

(Lande Dep. 436-37.) Strawn witnessed Freed pursue Lande into the hallway of the police station. (City Defs.' Mot. for Summ. J. Ex. D, Deposition of David A. Strawn [Strawn Dep.] 191-93.) Strawn directed another officer, Sergeant Jeremy Alleshouse, to remove Freed from the building; Alleshouse separated Freed and Lande, ending the encounter. (Strawn Dep. 194; Opp'n to City Defs.' Mot. for Summ. J. Ex. C, Deposition of Jeremy Alleshouse 109-10.)

Strawn investigated the MDT incident. (Strawn Dep. 201-02.) Freed was ultimately suspended for one day, a punishment that Lande asserts fell well below the appropriate punishment suggested by the Department's "disciplinary matrix." (Lande City Facts ¶¶ 94, 98.) It was recommended by Strawn, Miller, or both, that Lande receive a three-day suspension for his role in the MDT incident. (Id. at ¶ 98.) Strawn communicated the discipline to Lande and told him that the information that he wrote over the MDT embarrassed the police department. (City Facts ¶ 99; Lande City Facts ¶ 99.)

The Department's Deputy Commissioner Stuart Bedics instructed Strawn to review the courthouse incident. (Id. at ¶¶ 100, 201.) Strawn read the police reports regarding the Lopez arrest and spoke with Obrecht, Freed, and Maczko. (Id. at ¶¶ 101-04.) The City and the FOP concluded that Lande's report to Obrecht was meritless because a Department review revealed that no excessive force was used during the Lopez arrest. (Id. at ¶¶ 107-10.)

Strawn concluded his investigation by October 2006, finding that Lande should be charged with violating the Department's Standard Operating Procedure ("SOP") 56(C), "neglect of duty," and SOP 56(H), "interference with the administration of justice." (Id. ¶¶ 105, 201; see also City Defs.' Mot. for Summ. J. Ex. J., Lande Violation Record.) Lande was called before Bedics and Captain John Sarnicky to discuss the MDT incident and Lande's conversation with Obrecht in November 2006. (Lande Dep. 336-37.) The FOP's president, Steven Marshall, was present to represent Lande. (See id.) Lande recalled that Bedics and Sarnicky aggressively "interrogat[ed]" him regarding the MDT incident. (Id.) However, Lande acknowledged that he was given a chance to explain himself. (Id. at 338.) Nobody threatened him at this meeting, though Lande recalled that it was "intimidating." (Id.) Lande "couldn't read anything from" the senior Department officials, and was "more concerned just being a junior officer in that office." (Id. at 339-40.)

As a result of the Lieutenant Strawn's "harassment" arising from these two incidents, Lande transferred to the night shift on January 1, 2007, where he became a member of a different platoon supervised by Lieutenant Craig. (Id. at 13-15.) Still, Lande noted that his requests for personal days, court days, and overtime were consistently denied and that he was frequently taken to task by his superiors for minor infractions. (See City Facts ¶ 43; Lande City Facts ¶ 43; see also Lande Dep. 376-78.)

In October of 2007, after Lande filed this lawsuit, the City issued an Amended Violation Record that cited to the Police Manual's "failure to report" section rather than the SOP's "neglect of duty" section with respect to Lande's alleged failure to report his observations of unreasonable force. (City Facts ¶ 293.) Ultimately, upon consideration of Lande's past disciplinary history, it was determined that Lande should be suspended for a total of six days to be served in two three-day blocks in different pay periods. (City Facts ¶¶ 210, 212, 274; Lande City Facts ¶¶ 210, 212, 274.)

E. Grievance Proceedings

Department police employees below the rank of lieutenant are represented by the FOP. (Lande Union Facts ¶ 2.) These employees, including Lande, are covered by a Collective Bargaining Agreement ("CBA") between the City and the FOP. (Union's Facts ¶ 2; Lande Union Facts ¶ 2.)

The CBA provides that the "City retains the exclusive right to manage its business . . . to suspend, discharge, demote or take any other disciplinary action" subject to the terms of the CBA. (Union's Mot. for Summ. J. Ex. B. [CBA] art. VIII.)

Member-submitted grievances are subject to review by an FOP committee, which votes on whether to act on the grievance request. (Lande Union Facts 29; see also CBA art. XXIX.) Pursuant to the CBA, the grievances submitted to the Department by the FOP are heard by the Department Commissioner's Office; if the grievances cannot be remedied at that level, they are sent to the City's Business Administrator. (City Facts ¶¶ 194, 195; Lande City Facts ¶¶ 194, 195.) The CBA provides that failure to process a grievance within the time limits established by the CBA "presumes that it . . . has been satisfactorily resolved at the last step to which it has been properly processed." (CBA art.XXIX.)

Lande submitted grievances for the discipline he received for the MDT incident and report to Obrecht on Nov. 5, 2006 and Feb. 7, 2007, respectively. (Lande Union Facts ΒΆΒΆ 34, 50; City Defs.' Mot. for Summ. J. Ex. L., November 5, 2006 Grievance Letter From Russell Lande to FOP; Opp'n to Union's Mot. for Summ. J. Ex. R, February 7, 2007 Grievance Letter From Russell Lande to FOP.) Lande admitted to poor judgment in his use of the MDT, but complained that a three-day suspension was "arbitrary, ...

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