Opinion
Civ. No. AMD 98-3707.
September 9, 1999.
MEMORANDUM
Plaintiff Christopher Corr is a former probationary police officer in the Baltimore City Police Department. His employment was summarily terminated when, after an investigation by the Department's Internal Investigation Division ("IID") of a fellow officer's discharge of her service weapon in the station house, it was determined that Corr failed to give a full and truthful account of the incident.
Corr and his fellow officer ("Gaffney") were alone in a room at the station house and in close proximity to each other when Gaffney's semi-automatic firearm discharged a single round into the floor. Other nearby officers quickly appeared. Gaffney attested that the weapon was in her holster at all relevant times, that she never touched it or its trigger, and that she did not even realize it was her weapon that had discharged until several moments had passed. In the course of the ensuing investigation, Corr gave a version of events that circumstantially supported this account; he maintained that when he turned to look at Gaffney after hearing the discharge, she held in separate hands a clipboard and a briefcase, respectively, and that he never saw her touch her weapon. In contrast, at least one of the officers who arrived quickly after the weapon discharged asserted that he observed no clipboard or briefcase in Gaffney's hands and that, indeed, she had her hands on her holster and/or her weapon, which was in the holster.
The commissioner terminated both Corr and Gaffney. The expert analyses by the Department's firearms professionals he relied upon in effecting the terminations provide a rational basis for the conclusion that Gaffney's weapon could not have discharged unless the trigger was pulled. Accordingly, the commissioner concluded that Corr (and Gaffney) had failed to provide truthful information. The expert ballistics evidence has never been refuted by any opposing expert evidence, although at the 1999 name-clearing hearing Corr produced media reports of alleged defects resulting in unintended discharges in the type of weapon involved.
Corr instituted this action against the city and the police commissioner pursuant to 42 U.S.C. § 1983 alleging in a single count that his summary termination without notice of the charges or an opportunity to be heard deprived him of due process of law in violation of the Fourteenth Amendment. The defendants promptly filed motions to dismiss or in the alternative for summary judgment and Corr countered with a motion for summary judgment as to liability.
Corr filed the action in state court and defendants timely removed the case to this court. Although Corr has never specified whether defendant Frazier was sued in his individual capacity or official capacity or both, the course of proceedings (e.g., Frazier was never personally served) have made it clear that he sues defendant Frazier solely in his official capacity and that no individual capacity claim has been alleged. Without vigorous opposition, defendant the Mayor and City Council of Baltimore, i.e., the City of Baltimore, has been held in the case as a nominal defendant only as the parties essentially agree that Commissioner Frazier is the proper party defendant.
There is a cryptic allegation in the Complaint, ¶ 13, that the commissioner terminated Corr, who is white, because Gaffney is African American and therefore, the commissioner wanted to create the appearance that he was acting in a racially neutral manner. In his motion papers, Corr reiterates, cryptically, that "at this stage [of the case, the facts regarding alleged racial discrimination] are not material."
Manifestly, Corr has not stated a claim for race discrimination; indeed, his complaint contains solely one count which can only be read as asserting a claim for relief for deprivation of due process. Indeed, in other cases in this court, Commissioner Frazier has argued that he is a state official enjoying immunity and is not subject to suit other than in limited circumstances, i.e., under Title VII of the Civil Rights Act of 1964; Corr clearly has not sought to rely on Title VII. In any event, Frazier relies on no such argument here, perhaps because he removed the case to this court and assumes there has been an Eleventh Amendment waiver.
After oral argument on January 14, 1999, and for the reasons stated on the record, I concluded that although Corr enjoyed no constitutionally protected property interest in his public employment as a probationary officer (as he concedes), the reasoning of Hoffman v. McNamara, 630 F. Supp. 1257 (D. Conn. 1986), which recognized a limited liberty interest to a "name-clearing" hearing where a law enforcement officer is discharged for reasons which could render him unemployable in law enforcement, should be applied to this case. Thus, I concluded that because of the potential for, if not the actuality of, stigmatization arising from his termination from a law enforcement agency on the ground that he gave a "false statement" in an internal investigation, he enjoyed a limited liberty interest in his future employability as a law enforcement officer. Accordingly, I ordered the defendants to "afford to . . . Corr a fundamentally fair due process hearing as to the reason(s) for [his] discharge from employment as a police officer, such process to include but not necessarily be limited to, written notice of the charge(s) or violation(s) providing cause for his discharge, an opportunity to see the evidence supporting such charge(s) or violation(s), and a meaningful opportunity to be heard."
The defendants undertook to comply with my Order. First, they provided Corr's counsel with the complete investigative file compiled by the IID. Next, an on-the-record hearing was convened before the Chief of the Department's Human Resources Bureau ("Colonel Gregory"). Corr attended the hearing represented by counsel, who lodged objections to the consideration of certain evidence, examined Corr as on direct and presented evidence. Counsel for the parties then presented closing argument. Notwithstanding Corr's presentation, Colonel Gregory sustained the previous finding that Corr was guilty of misconduct and, specifically, that Corr provided one or more false statements regarding the weapon discharge incident.
The parties have now renewed their motions for summary judgment. Their submissions have been fully considered and no further hearing is required. Corr objects to many aspects of the name-clearing proceedings, including the defendants' failure to call witnesses and the consequent lack of an opportunity for cross examination; alleged bias on the part of Colonel Gregory; and the admission into the record of adverse polygraph evidence. Indeed, he has sought to expand his complaint to include a claim for a violation of substantive due process, apparently on the theory that Commissioner Frazier's refusal to agree to binding arbitration and, instead, his insistence upon a hearing before one of his subordinates, should "shock the judicial conscience." See generally County of Sacramento v. Lewis, 523 U.S. 833 (1998).
I have fully considered all of the arguments advanced by Corr and I am satisfied that, under the unique circumstances of this case, neither singly nor in combination do they fatally undermine the fundamental fairness which marked the name-clearing hearing he was afforded by the commissioner. The many obiter dicta cited by Corr are not persuasive, and, in any event, all of the procedural due process cases Corr relies on are easily distinguishable, e.g., Hargray v. City of Hallandale, 830 F. Supp. 1467 (S.D.Fla. 1993), rev'd, 57 F.3d 1560, 1567 (11th Cir. 1995) (per curiam) ("The district court found, and the City does not dispute, that Hargray had a property interest in his continued employment with the City. . . ."); inapposite, e.g., Garraghty v. Com. of Va., Dept. of Corrections, 52 F.3d 1274 (4th Cir. 1995) (affirming in part and reversing in part on interlocutory appeal district court's adjudication of qualified immunity issues); or both. E.g., Benavidez v. City of Albuquerque, 101 F.3d 620 (10th Cir. 1996).
Corr misapprehends the limited nature of the post termination hearing supported by the reasoning of Hoffman, which is simply "for the sole purpose of presenting his version of the facts and clearing [if he can] his name and reputation." 630 F. Supp. 1261. He has been afforded that opportunity here; no more is required. The record makes plain that the evidence supporting the commissioner's conclusion that Corr failed to give a full and truthful account of the circumstances surrounding the discharge of Gaffney's weapon certainly is not overwhelming. On the other hand, the commissioner's conclusion is supported by substantial evidence, including expert ballistics analyses. It is not remotely accurate, in light of the evidence before Colonel Gregory, to describe Corr's discharge as irrational or arbitrary.
I have concluded that defendants deprived Corr of procedural due process in failing to afford him a hearing. When procedural due process rights are denied, nominal damages may be presumed. Carey v. Piphus, 435 U.S. 247, 266 (1978); Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (interpreting Carey). Accordingly, Corr is entitled to an award of nominal damages of $1.00. An order follows.
Defendants have plausibly insisted that because they have never disclosed the basis for Corr's termination, no constitutional violation has ripened into a cognizable claim.
ORDER
For the reasons stated in the foregoing Memorandum, it is by the United States District Court for the District of Maryland this 9th day of September, 1999, ORDERED
(1) That the renewed motion for summary judgment filed by Defendant Frazier (and deemed joined in by Defendant Mayor and City Council of Baltimore) IS GRANTED IN PART AND DENIED IN PART; and it is further ORDERED
(2) That Plaintiff's renewed motion for summary judgment is GRANTED IN PART AND DENIED IN PART; and it is further ORDERED
(3) That JUDGMENT OF ONE ($1.00) DOLLAR NOMINAL DAMAGES IS HEREBY ENTERED IN FAVOR OF PLAINTIFF AGAINST DEFENDANT FRAZIER ONLY IN HIS OFFICIAL CAPACITY; and it is further ORDERED
That the Clerk of the Court shall CLOSE THIS CASE and TRANSMIT a copy of this Order to counsel of record.