meetings (in which he had previously been included) where input
from supervisors, like the lieutenants, would be given.
Plaintiff's Brief at 14. He claims he was also excluded, during
this same time frame, from afternoon car rides with Chief Ogden
and Bureau Commander/Lieutenant Corkey, during which "sensitive
issues were discussed." Plaintiff's Brief at 15. Plaintiff
alleges that Chief Ogden stopped talking to him, stopped issuing
orders through him, and shunned plaintiff openly in front of
others in the department. Plaintiff's Brief at 15. Furthermore,
plaintiff alleges that, following a discussion with the Chief in
his office regarding comments by plaintiff about another
lieutenant's misconduct, Ogden remarked to the other officer,
"Don't worry, I'll be shutting his mouth soon." Plaintiff's Brief
at 17. Shortly thereafter, the allegedly trumped-up domestic
abuse complaint was filed.
Defendants do not directly controvert these allegations.
Defendants describe plaintiff's allegations as vague and
conclusory, and contend that the department's preferral of
disciplinary charges and dismissal of plaintiff from his job were
justifiable actions taken based on Virginia Birmingham's
allegation of domestic abuse and on the disrepute brought to the
police department because of publicity surrounding the criminal
complaint filed against plaintiff. Plaintiff, however, maintains
that his wife's criminal complaint was procured by Chief Ogden
and Lieutenants Corkey and Valencia at a time when she was
drugged and confused, and that all three knew that she was
unsure as to what had happened at the Birmingham home in the
early morning hours of October 12.
Whether or not there was probable cause to bring an assault
charge against plaintiff based on the alleged assault, or to
subsequently file departmental disciplinary charges against him
for misconduct, Virginia Birmingham's own testimony at
plaintiff's disciplinary hearing supports his assertion that the
charges were trumped up, and that the criminal assault charge
that ultimately lead to his dismissal was improperly made, at the
hands of Chief Ogden. "On a motion for summary judgment, the
court is not to weigh the evidence or . . . resolve issues of
fact, but only to determine whether there are issues to be
tried." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994).
Viewing the evidence in the light most favorable to plaintiff,
the record demonstrates that he has made a showing of disputed
fact sufficient to defeat summary judgment.
2b. Plaintiff's Second Cause of Action
As his second cause of action, plaintiff alleges a violation of
his right of association under the First Amendment. This claim
must be dismissed.
Plaintiff is not asserting that the defendants' actions in
bringing him before the Board of Police Commissioners or
terminating his employment prevented him from associating with or
even hindered his association with the PBA. Rather, the essence
of plaintiff's second cause of action is that he was an active
member of the PBA and advocated that the police department
support or encourage PBA membership, and that based on that
affiliation and expression of views, defendants retaliated
against him by getting him fired.
Plaintiff may not maintain a separate claim for retaliation
based on exercise of First Amendment associational rights. The
type of association plaintiff describes, with respect to his
affiliation with the PBA, is what might be termed "expressive"
association. See, e.g., Adler v. Pataki, 185 F.3d 35, 42 (2d
Cir. 1999) (noting that the Supreme Court has recognized two
types of association rights — "an individual's right to associate
with others in intimate relationships, and a right to associate
with others for purposes of engaging in activities traditionally
protected by the First Amendment, such as speech and other
expressive conduct"). Expressive association is considered a form
of "speech," in the way that certain expressive conduct
has been held to constitute speech. See, e.g., R.A.V. v. City of
St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)
(holding that disorderly conduct ordinance censored expressive
conduct and thereby violated the First Amendment); Tinker v. Des
Moines Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731
(1969) (finding that black arm band worn by students to protest
war was expressive conduct protected by the free speech clause of
the First Amendment); Spence v. Washington, 418 U.S. 405, 94
S.Ct. 2727, 41 L.Ed.2d 842 (1974) (finding that peace sign
attached to American flag was protected "speech" under the First
Amendment). Plaintiff's expressive association with the PBA is
protected by the First Amendment on that basis. Thus, the second
cause of action is comprehended by the first, and must be
dismissed as duplicative.
2c. Plaintiff's Third Cause of Action
As his third cause of action, plaintiff alleges a violation of
his right to due process. Public employees who can be discharged
only for cause have a constitutionally protected property
interest in their tenure, and cannot be fired without due
process. Gilbert v. Homar, 520 U.S. 924, 927-28, 117 S.Ct.
1807, 138 L.Ed.2d 120 (1997) (citing Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d
548 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct.
2694, 33 L.Ed.2d 570 (1972)). Pre-termination notice and an
opportunity to be heard, coupled with a full adversarial hearing
after termination, satisfy the constitutional due process
requirements for termination from public employment. Cleveland
Bd. of Education v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct.
1487, 84 L.Ed.2d 494 (1985).
Defendants do not dispute that Birmingham had a property
interest in his position with the police department and could
only be discharged for cause. Plaintiff does not dispute that
defendants afforded him notice and an opportunity to be heard. In
fact, they afforded him a pre-termination adversarial hearing. It
is the conduct and results of that hearing that plaintiff
challenge as violating his constitutional rights.
Plaintiff contends that the Board of Police Commissioners
violated his due process rights in connection with the
disciplinary hearing in the following ways: first, that the
five-member Board made its determination based on evidence
outside of the record at the hearing, including statements
allegedly made by Chief Ogden to the Commissioners five months
before the hearing that plaintiff's wife had also reported
domestic abuse before the incident for which he was being
charged, and that the department had not taken a firm stand but
should do so this time; second, that the Mayor deliberately
stalled the Commission's meeting and discussion of the matter
after the hearing until it could be arranged that only the three
Commissioners who would vote for termination could be present;
third, that at that meeting the Mayor "cast his pre-determined
vote along with [those of] his two political cronies and by
unsigned determination . . . this group of three convicted
Plaintiff and summarily terminated his employment."
Plaintiff also alleges that Chief Ogden and certain of his
subordinate officers (presumably at the Chief's direction)
testified perjuriously at the hearing in order to provide the
Board with evidence sufficient to justify a conviction and
termination of plaintiff. Plaintiff further alleges that Ogden
and Mayor DeStefano arranged to have the disciplinary hearing
stenographic record altered "in at least two critical respects,"
though plaintiff does not specify what they are. Plaintiff has
provided no evidentiary support for his musings that Chief Ogden
or others lied, and that the Chief and the Mayor doctored the
hearing transcript to cover up such lies.
However, plaintiff's factual allegations are irrelevant.
Plaintiff has no claim for denial of due process because the
availability of an Article 78 proceeding constitutes an adequate
post-deprivation remedy for
any of the alleged due process violations, or for all of them
taken together. Hellenic Am. Neighborhood Action Comm. v. City
of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citing Hudson v.
Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984));
see also Marino v. Ameruso, 837 F.2d 45 (2d Cir. 1988).
The Supreme Court has drawn a distinction between due process
claims based on established state procedures and claims based on
random, unauthorized acts by state employees. See Hudson, 468
U.S. at 532, 104 S.Ct. 3194; Parratt v. Taylor, 451 U.S. 527,
541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). When the deprivation
occurs in the more structured environment of established state
procedures, rather than due to random acts, the availability of
post-deprivation procedures (like Article 78 review) will not
satisfy due process. Hudson, 468 U.S. at 532, 104 S.Ct. 3194;
Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct.
1148, 71 L.Ed.2d 265 (1982). Plaintiff argues, in response to
defendants' motion for summary judgment, that his termination was
not the result of random or unauthorized actions by state actors,
but rather a deprivation that occurred "in [the] more structured
environment of a City or State procedure." Plaintiff's Brief at
Plaintiff's factual allegations, however, do not support such
an argument. Birmingham does not claim that the established state
procedure for dismissing municipal employees violates due
process. Rather, he claims that his hearing was conducted, and he
was dismissed, in flagrant violation of the rules that should
govern such proceedings and decisions. Assuming for the moment
that Birmingham was deprived of his job without due process of
law, that deprivation occurred because of random and arbitrary
acts of Chief Ogden and certain of the Police Commissioners in
ignoring matters of procedure. As such, his due process claim
falls under the rule of Parratt and its progeny that random and
unauthorized due process deprivations can be remedied via an
Article 78 proceeding (or other, similar post-deprivation
remedy). Birmingham's claim survives only if New York does not
provide such a procedure. It does; his claim does not.
This Circuit has held that "an Article 78 proceeding is a
perfectly adequate post-deprivation remedy. . . ." Hellenic Am.
Neighborhood Action Comm., 101 F.3d at 881; see also Interboro
Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir. 1993); McDarby
v. Dinkins, 907 F.2d 1334, 1338 (2d Cir. 1990); Giglio v.
Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984). Furthermore,
plaintiff, having failed to take advantage of this remedy, "can
find little comfort in the general rule that § 1983 allows
plaintiffs with federal or constitutional claims to sue in
federal court without first exhausting judicial or administrative
remedies." Hellenic Am. Neighborhood Action Comm., 101 F.3d at
881 (citing Kraebel v. New York City Dep't of Hous. Preservation
& Dev., 959 F.2d 395, 404 (2d Cir. 1992)); see also Patsy, 457
U.S. at 500-01, 102 S.Ct. 2557; Monroe v. Pape, 365 U.S. at
183, 81 S.Ct. 473, overruled on other grounds by Monell v.
Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). There is no constitutional violation when the
state affords an adequate post-deprivation remedy for a random,
arbitrary deprivation of property or liberty. Zinermon v.
Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990);
Hudson, 468 U.S. at 531, 533, 104 S.Ct. 3194; Parratt, 451
U.S. at 541, 101 S.Ct. 1908. Thus, plaintiff's due process claim
must be dismissed.
2d. Plaintiff's Fourth Cause of Action
Plaintiff, in his Fourth cause of action, contends that the
defendants' actions in dismissing him from the police force
violated his rights under the Equal Protection Clause of the
Defendants' motion for summary judgment as to this claim is
Because plaintiff bases his equal protection claim on an
allegation of selective enforcement, he must show that he was
subjected to selective enforcement of the law "based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct.
501, 7 L.Ed.2d 446 (1962). A person bringing an action under the
Equal Protection Clause must show intentional discrimination
against him because of his membership in a particular class, not
merely that he was treated unfairly as an individual. See
Huebschen v. Department of Health and Soc. Servs.,
716 F.2d 1167, 1171 (7th Cir. 1983). To state an equal protection claim
for selective enforcement, plaintiff must show: (1) that he was
selectively treated compared with others similarly situated, and
(2) that the selective treatment was prompted by an impermissible
consideration, such as membership in a suspect class, intent to
inhibit or punish the exercise of a constitutional right, or
malicious or bad faith intent to injure. See Crowley v.
Courville, 76 F.3d 47, 52-53 (2d Cir. 1996); Zahra v. Town of
Southold, 48 F.3d 674, 683 (2d Cir. 1995); LaTrieste Restaurant
& Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.
Plaintiff alleges that he was selectively treated because he
was subjected to a disciplinary hearing and terminated from
employment while other officers on the force who had engaged in
misconduct were not required to undergo a hearing or terminated
for that misconduct. Plaintiff's Brief at 37-38. Plaintiff notes
that at least one other police officer was disciplined after an
accusation by his wife that he assaulted her, but that officer
was not put through a disciplinary hearing and was suspended for
two weeks rather than terminated. Plaintiff's Brief at 37.
Plaintiff further alleges that no other disciplinary hearings
pursuant to Section 75 of the New York Civil Service Law have
been held against members of the Middletown Police Department
since 1986, and that only one other hearing was held by the Board
of Police Commissioners since approximately 1975. Plaintiff's
Brief at 39.
Defendants reply that the decision of the police department to
discipline its members is a purely discretionary one, and that,
where deemed appropriate, disciplinary action has been taken when
police officers within the department break the rules. They argue
that plaintiff has merely demonstrated that individual officers
are dealt with on a case-by-case basis.
The heart of Birmingham's equal protection claim is that his
constitutional rights were violated because the Rules of Conduct
and the Civil Service Law were applied to him when they were
not applied equally to others. However, "[t]here is no right
under the Constitution to have the law go unenforced against you,
even if you are the first person against whom it is enforced, and
even if you think (or can prove) that you are not as culpable as
some others who have gone unpunished." Futernick v. Sumpter
Township, 78 F.3d 1051, 1056 (6th Cir. 1996). Even if plaintiff
could prove his allegation that at least one other officer went
undisciplined for domestic abuse, failure to proceed against
others who are comparably situated is not by itself a basis for
finding a denial of equal protection. Zahra, 48 F.3d at 684
(emphasis added). "Equal protection does not require that all
evils of the same genus be eradicated or none at all."
Zahra, 48 F.3d at 684 (quoting LeClair v. Saunders,
627 F.2d 606, 608 (2d Cir. 1980)).
To sustain an equal protection claim based on alleged selective
enforcement, plaintiff must also show invidious discrimination.
Birmingham does not claim membership in any suspect or
quasi-suspect group; he does not claim denial of equal protection
based on race, religion, nationality or gender. Rather, he claims
that he was singled out for discipline because of his criticizing
political cronyism in the Middletown Police Department.
The Second Circuit has held that selective enforcement intended
to discourage or punish the exercise of a constitutional right or
based on malicious or bad faith intent to injure may afford a
basis for relief under § 1983. LeClair, 627 F.2d at 610. When
such a selective enforcement claim can be successfully maintained
is unclear.*fn13 However, viewing the evidence in the light most
favorable to plaintiff, it would appear that he has raised a
disputed issue of fact with respect to whether defendants
intended to discriminate against him based on his exercise of
protected speech, or based on malicious or bad faith intent to
injure him. Therefore, defendants' motion for summary judgment as
to plaintiff's selective enforcement claim must be denied.
2e. Plaintiff's Fifth Cause of Action
As his Fifth cause of action, plaintiff asks the court to
assert supplemental jurisdiction over a state law claim for
relief pursuant to Article 78 of the New York CPLR. Plaintiff
states in his complaint that, "by reason of repeated ex parte
communications between Ogden and the Mayor[,] the Mayor was
disqualified as a matter of law from presiding over,
participating in and/or voting with respect to the disciplinary
hearing/charges at issue," and ". . . the Mayor's failure to
recuse himself was arbitrary, capricious, and/or otherwise
unlawful in violation of Plaintiff's state law entitlements to a
fair hearing." Complaint ¶¶ 36, 37. Plaintiff asserts that,
pursuant to Article 78, his disciplinary hearing and conviction
"must be declared null and void." Complaint ¶ 38.
Plaintiff asks this court to function as a state tribunal and
conduct an Article 78 hearing. The courts that have addressed
such a request have noted that Article 78 is "a novel and special
creation of state law" and "a purely state procedural remedy."
See, e.g., Camacho v. Brandon, 56 F. Supp.2d 370, 379-80
(S.D.N.Y. 1999) (citations omitted); Lucchese v. Carboni,
22 F. Supp.2d 256, 258 (S.D.N.Y. 1998). Article 78 provides a special
proceeding for judicial review of action by "every court,
tribunal, board, corporation, officer, or other person, or
aggregation of persons. . . ." N.Y.C.P.L.R. § 7802(a). "[I]t
cannot be said that an Article 78 proceeding . . . is a suit of a
civil nature at common law or in equity." Herrmann v. Brooklyn
Law School, 432 F. Supp. 236, 240 (E.D.N.Y. 1976). Rather,
Article 78 actions were "designed for the state courts, and are
best suited to adjudication there." Lucchese at 258 (citing
Herrmann at 240).
Counsel for plaintiff, having served as counsel in both the
Camacho and Lucchese cases, is well aware that the federal
courts are loath to exercise jurisdiction over Article 78 claims.
Even where a plaintiff has one or more federal claims still alive
— as did plaintiffs Camacho and Lucchese, and as does Birmingham
— the interests of judicial economy are not served by embroiling
this court in a dispute over local laws and state procedural
requirements. Article 78 "is designed to facilitate a `summary
disposition' of the issues presented, [and] . . . is
`a fast and cheap way to implement a right.'" Lucchese at 256
(quoting Davidson v. Capuano, 792 F.2d 275, 280 (2d Cir.
1986)). I decline to exercise supplemental jurisdiction over
plaintiff's Article 78 claim, and remit him to state court to
seek review of his termination through the special vehicle the
state has provided for such review.*fn14
3. Monell liability
Plaintiff has asserted claims against the City of Middletown.
It is axiomatic that no such claim will lie in the absence of
evidence that plaintiff's constitutional rights were violated
pursuant to a policy or practice of the municipality. Monell v.
Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). In spite of the well known requirements for
stating a claim under Monell, nowhere in plaintiff's complaint
does he use the words "policy" or "practice," and nowhere does he
describe the actions of the City of Middletown (via its Board of
Police Commissioners) in terms sufficient to maintain a cause of
action against that defendant. Plaintiff's claims against the
City should be dismissed for this reason alone.
However, plaintiffs have briefed the Monell issue in response
to defendants' motion for summary judgment, and I can dispose of
the claims against the City based on the merits of the parties'
submissions. Therefore, I do so on that ground.
Defendants urge that the City of Middletown may not be held
liable for the Board of Police Commissioners dismissal of
plaintiff because, even if plaintiff were able to prove that the
actions of the defendants in connection with his dismissal were
unconstitutional, the evidence does not demonstrate that the
decision was made pursuant to an existing municipal policy, or
that the basis for the decision was adopted as official custom or
policy by the City. Defendants incorrectly assert that a single
act is never sufficient to establish liability on the part of a
municipality under Monell, but they are correct that the single
act at issue in this case does not reflect or establish any
Here, the only fair inference is that what happened to
plaintiff (assuming things occurred as he claims) was unique to
him — a deeply personal vendetta carried out by persons who were
out to get him. That is not municipal action taken pursuant to
policy or practice — unless plaintiff were to present this court
with evidence that Chief Ogden and Mayor DeStefano and their
cronies make it a practice to cook up disciplinary charges
against outspoken police officers in order to procure their
dismissal. There is no such evidence in the record before this
Plaintiff, relying on the indisputable fact that the Mayor and
Police Chief qualify as "policy makers," asks this Court to rule,
in effect, that every personnel decision made or action taken by
a policy maker rises to the level of municipal policy. As counsel
for plaintiff puts it, "the requirement of establishing policy is
met when federal law is violated by an act of a policymaker."
Plaintiff's Brief at 44. This Court has been confronted with the
same argument (always propounded by the same law firm) in
literally dozens of civil rights cases. I have always dismissed
it. I dismiss it here.
It has been clear since the Supreme Court's decision in
Pembaur v. City of Cincinnati that "municipal liability may be
imposed for a single decision by municipal policymakers under
appropriate circumstances." 475 U.S. 469, 479, 106 S.Ct.
1292, 89 L.Ed.2d 452 (1986). However, "[t]he fact that a
particular official — even a policymaking official — has
discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an
exercise of that discretion." Pembaur, 475 U.S. at 481, 106
S.Ct. 1292 (emphasis added). In this case, while the Board of
Police Commissioners had the discretion to determine whether
officers brought before it should be disciplined or dismissed,
its decision to dismiss based on the facts of Birmingham's
individual case — even if incorrect, and, in fact, even if
unconstitutional — would not necessarily constitute municipal
policy on personnel or disciplinary matters. Under Pembaur, the
decisionmaker must be responsible for establishing final
government policy respecting the particular activity before the
municipality can be liable. Id. (citing Oklahoma City v.
Tuttle, 471 U.S. 808, 822-24, 105 S.Ct. 2427, 85 L.Ed.2d 791
Whether an official has final policymaking authority is a
question of state law. Pembaur, 475 U.S. at 483, 106 S.Ct.
1292. Neither party to this action has addressed this issue or
presented the court with law or evidence regarding the
policymaking authority — or lack thereof — of the Board of Police
Commissioners with respect to final personnel actions. Defendants
assert that the Board did not act pursuant to a policy or
practice. Plaintiff simply asserts that, because the Mayor is a
policymaker, the Board was acting pursuant to policy. Absent some
evidence of state law that vests final authority in the Board of
Police Commissioners to establish personnel policy for the City
of Middletown (or absent evidence that it was the practice of the
City to terminate police officers who engaged in disfavored
speech on public matters), plaintiff has failed to raise a
disputed issue of fact as to whether the defendant City dismissed
him pursuant to an unconstitutional policy or practice.
Defendants' motion for summary judgment on plaintiff's claims
against the City must, therefore, be granted.
4. Qualified Immunity
Defendant Ogden, who has been sued in his individual capacity,
contends that he is entitled to qualified immunity from liability
on plaintiff's remaining claims, for First Amendment retaliation
and for selective prosecution under the Equal Protection Clause.
Ogden's request for qualified immunity is denied.
In general, public officials are entitled to qualified immunity
if their conduct does not violate constitutional rights that were
clearly established at the time the alleged violation occurred.
See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982); Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.
1996); Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991).
Even when a plaintiff's federal rights are so clearly defined
that a reasonable public official would know that his actions
violate those rights, qualified immunity may still be available
as a bar to a plaintiff's suit if it was objectively reasonable
for the public official to believe that his acts did not violate
those rights. Kaminsky, 929 F.2d at 925; see also Anderson v.
Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987); Weyant, 101 F.3d at 857.
It is well settled, and was so at the time the actions of the
defendants took place, that a public employee may not be
discharged for the exercise of First Amendment rights. Therefore,
Chief Ogden cannot claim that he did not know it would be
unlawful for him to prefer disciplinary charges against
Lieutenant Birmingham simply because Birmingham voiced opinions
that the Chief disagreed with regarding administration of the
Middletown Police Department. Chief Ogden does not, of course,
claim that. Rather, Ogden asserts that it was objectively
reasonable for him to believe that his act of preferring
disciplinary charges against plaintiff was taken in accordance
with the law, because the
Chief had discretion to determine whether plaintiff ought to be
charged with violating the Department's Rules of Conduct and
whether a disciplinary hearing ought to be recommended. Ogden
argues that, even if his acts are found to be unconstitutional, a
rational jury could find that reasonable officials could disagree
about the legality of preferring charges against plaintiff based
on the circumstances.
Use of the "objective reasonableness" test enables courts to
decide qualified immunity claims as a matter of law when there
are no material issues of disputed fact. Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995); see also DiMarco v. Rome Hosp. &
Murphy Mem'l Hosp., 952 F.2d 661, 666 (2d Cir. 1992). In other
words, in a case such as this, where the law is clearly settled,
summary judgment may be granted on qualified immunity grounds if
"the only conclusion a rational jury could reach is that
reasonable [officials] would disagree about the legality of the
defendants conduct under the circumstances." Lennon, 66 F.3d at
420 (emphasis added).
As with any motion for summary judgment, when deciding a motion
for qualified immunity, the court must view the record most
favorably to the party opposing the motion. Plaintiff alleges
that the criminal assault complaint should never have issued — a
position that can fairly be said to be supported by the testimony
of plaintiff's wife at the disciplinary hearing, to the effect
that: she did not know if plaintiff struck her, "the police
officers kept saying they needed to know and I kept saying I
didn't know," and she went to the police department because "Lou
Ogden requested strongly that I come in and talk to him. It was
at his urging." See Transcript of May 30, 1997 Board of Police
Commissioners Hearing, attached as Ex. 13 to the Affidavit of Kim
Berg, at 24-25, 29, 32, 52. Furthermore, plaintiff asserts that
Chief Ogden knew that the assault charge was false, or at least
suspect (because he in fact helped to procure it from the
confused and heavily medicated Virginia), and that the criminal
complaint was, therefore, not a valid basis on which to bring
departmental disciplinary charges against plaintiff.
I find that a rational jury could come to the conclusion that
Chief Ogden did not act reasonably under the circumstances.
Therefore, the court cannot make a qualified immunity
determination at this time. Defendant's motion is denied.
This constitutes the decision and order of the court.