Schwartz was traveling at an excessive rate of speed, had not exercised due caution, and recommended disciplinary charges. None were brought at that time.
On September 20, 1988, Schwartz was issued a summons in Virginia for reckless driving after he was stopped by the Kent County Police for weaving in and out of traffic at a speed over 100 miles per hour. Schwartz requested "professional courtesy" from the Virginian officers who nonetheless issued him a summons. Schwartz was convicted and fined $ 500 for reckless driving and passing on the right shoulder.
Nine days later, Schwartz struck and killed another pedestrian while driving to work his Pontiac automobile, bearing the vanity license plate "MY T QUICK." Witnesses stated that Schwartz was traveling at a high rate of speed in the safety lane for at least six blocks. They further alleged that after he struck the pedestrian, Schwartz got out of the car, showed his badge to bystanders and told them "you didn't see anything."
The next month, in October of 1988, one of Schwartz's neighbors filed a complaint with the Patrol Borough Staten Island ("PBSI") about Schwartz's dangerous driving in his housing complex. In response to this complaint, the Field Affairs Unit ("FIAU") of the PBSI instigated an investigation of Schwartz's driving habits. In the FIAU investigation, undercover officers followed Schwartz to and from work during January and February of 1989. The officers observed Schwartz commit six moving violations on January 5, 1989, four moving violations (including running three red lights) on February 16, 1989, and three moving violations (including running two red lights) on February 23, 1989.
On March 29, 1989, Lieutenant Economou of the Internal Affairs Division interviewed Schwartz and advised him of the FIAU investigation which issued Schwartz 13 summonses for the moving violations observed by the undercover officers. At the end of that interview, Schwartz became so distraught and emotional that his firearm had to be removed, and he was taken to the NYPD's psychological services office for an exam. Thereafter, Schwartz was placed on restricted duty.
On April 14, 1989, formal departmental charges and specifications were brought against Schwartz regarding his driving history. Schwartz pleaded guilty and agreed to a negotiated settlement -- consisting of the deferred forfeiture of ten vacation days -- prior to the hearing.
On September 10, 1990, Police Officer Thomas Farina ("Farina") stopped Schwartz on the Staten Island Expressway for speeding in excess of 100 miles per hour. Two days later, on September 12, 1990, Police Officer Sean Flood ("Flood") stopped Schwartz for driving at 124 miles per hour. Based upon these incidents, departmental charges were again lodged against Schwartz.
Although the possibility of a negotiated settlement with Schwartz was discussed with NYPD, First Deputy Commissioner Raymond Kelly, based upon the recommendations of Deputy Inspector Jeremiah Quinlan and other high ranking officials, determined that the charges against Schwartz should be adjudicated at a departmental hearing.
The hearing was held before Commissioner Koshetz on September 10 and 12, 1990. Schwartz was represented by counsel and testified in his own behalf. Officers Farina and Flood both testified at the hearing. Officer Farina testified that was unable to either identify Schwartz as the "Schwartz" he had pulled over on the night of September 10, 1990, nor was he able to recall how fast the "Schwartz" he had pulled over had been driving.
Officer Flood, by contrast, positively identified Schwartz and stated that he had clocked Schwartz with his radar gun at 124 miles per hour. (Decision at 3; Hearing Trans. at 20-24.)
In her decision, Commissioner Koshetz found herself "constrained" to find Schwartz not guilty of the first Specification concerning incident of September 10, 1990. (Decision at 5.) She further noted that although "the witness' [Farina's] inability to recall the salient facts [is] extremely suspicious, especially in light of the fact that he was initially questioned about the incident only four days later, the evidence is simply insufficient to merit a finding of Guilty absent a confession by the Respondent." (Decision at 6.)
Commissioner Koshetz then proceeded to find Schwartz guilty as charged of the second Specification concerning his driving on the night of September 12, 1990. In forming Schwartz's penalty, Commissioner Koshetz reviewed his entire service record, including a memorandum in his personnel folder from Deputy Inspector Philip W. Lee (the "Lee Memorandum") of the Employee Management Division. The Lee Memorandum was dated June 5, 1991, and assigned Schwartz to the division's Special Monitoring Program because of "a pattern of extremely reckless driving." The Lee Memorandum cited Schwartz's two fatal accidents and a series of traffic infractions since 1987. (Decision at 8-9.)
After reviewing Schwartz's entire record, including the Lee Memorandum, Commissioner Koshetz concluded:
Although there is no proof that [Schwartz] was at fault in the fatalities mentioned in Lee's report, it is significant that the involvement in these tragedies did not make him a more cautious and conservative driver. To the contrary, even accepting his estimate of his speed on September 12, 1990, traveling 90 miles an hour on a public road demonstrates a conscious decision to drive recklessly. In sum, if two fatal accidents, regardless of who was at fault, and a string of summonses are not enough to change a person's behavior, I know of no disciplinary penalty short of termination that is likely to achieve that result. Therefore, because [Schwartz] has demonstrated that he lacks the judgment and the discipline to serve in this position of trust and responsibility, I recommend that he be DISMISSED from the New York City Police Department.
(Decision at 9.)
On September 30, 1991, Schwartz submitted his written objections regarding the Decision to Commissioner Brown, pursuant to Fogel v. Bd. of Educ., 48 A.D.2d 925, 369 N.Y.S.2d 517 (2d Dept. 1975). Police Commissioner Brown accepted Commissioner Koshetz's recommendation and, in an order dated October 23, 1991, directed that Schwartz be terminated as a police officer.
Schwartz filed this Complaint on February 21, 1992 alleging the following two causes of action: (1) the Defendants impermissibly considered "allegations and innuendo" as set forth in the Lee Memorandum, in violation of Schwartz's rights to due process under the Fourteenth Amendment and his civil rights under § 1983 (Compl. PP 31-34); and (2) the Defendants' discharge of Schwartz was "arbitrary and capricious, an abuse of discretion," constituting a denial of equal protection under the laws of New York and the Constitution.
Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on.