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Boss v. Kelly

August 23, 2007

KENNETH BOSS, PLAINTIFF,
v.
RAYMOND W. KELLY, AS POLICE COMMISSIONER OF THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, AND THE CITY OF NEW YORK, DEFENDANTS.



OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

This lawsuit constitutes a second attempt by New York City Police Officer Kenneth Boss to convince a court to override the decision made by NYPD Commissioner Raymond W. Kelly to restrict Officer Boss's use of a firearm while on duty. Kelly placed this restriction on Boss because of his involvement in a highly publicized and racially charged incident in 1999 in which Boss and three other police officers fired a large number of gunshots in the fatal shooting of Amadou Diallo. As explained below, the result in the present case is no different than when Boss advanced similar arguments in the course of an Article 78 proceeding he brought in the New York state courts. Because Boss has failed to state a valid claim for deprivation of any constitutionally protected property or liberty interest without due process, the Complaint must be dismissed.

I. Background

The facts alleged in the Complaint, which are accepted as true for the purposes of this motion, are as follows. Plaintiff Kenneth Boss is a police officer employed by the New York City Police Department ("NYPD"). (Compl. ¶ 11.) On February 4, 1999, Boss was one of four officers involved in the fatal shooting of Amadou Diallo, an unarmed twenty-two year old man of African descent. (Compl. ¶ 14.) The incident received nationwide media attention and triggered protests related to the issue of police brutality. (Compl. ¶ 15.)

Following the incident, plaintiff surrendered his weapon to the NYPD. (Compl. ¶ 15.) Shortly thereafter, the four officers involved in the shooting of Diallo, including Boss, were indicted by a grand jury for murder, reckless endangerment, manslaughter and criminally negligent homicide. (Compl. ¶ 17.) Upon his indictment, the NYPD suspended Boss for thirty days and then returned him to duty on "modified assignment," which is a duty status reserved for officers involved in disciplinary proceedings or criminal charges. (Compl. ¶ 16.)

On February 25, 2000, after a trial, a jury found Boss not guilty of all charges. (Compl. ¶ 18.) Subsequently, the NYPD Firearms Discharge Review Board concluded that Boss had not violated any NYPD firearms guideline, and recommended that plaintiff's duty status be reviewed in one year. (Compl. ¶ 19.)

One year later -- in April 2002 -- Boss wrote to Commissioner Kelly asking that he be returned to full duty, but that request was denied. (Compl. ¶ 21.) Boss was then assigned to the Emergency Service Unit's training school and repair shop, where he remained on "modified assignment" with no gun. (Compl. ¶ 22.)

In August 2002, Boss commenced a proceeding in New York Supreme Court, New York County, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking restoration to full duty with a gun. He alleged in that petition that maintaining him on "modified assignment" without a gun was arbitrary and capricious and in excess of Commissioner Kelly's legal authority. (Compl. ¶ 24.) In his affidavit submitted in opposition to Boss's Article 78 petition, Commissioner Kelly explained the reasons behind his decision to maintain Boss on "modified assignment" without a gun. (Compl. ¶ 25.) Specifically, according to the Complaint, Kelly wrote that in light of the controversy surrounding the Diallo shooting and subsequent criminal trial, if Boss were restored to full duty with a gun, and ever had to take any police action involving the use of force, "he and the Department would be inappropriately subjected to pre-judgment." (Compl. ¶ 26.) This, according to Boss, "brands Plaintiff as incompetent and dangerous on the authority of sheer speculation." (Compl. ¶ 43.)

On April 14, 2004, Justice Michael Stallman of the New York Supreme Court granted in part and denied in part Boss's Article 78 petition in a written opinion. Boss v. Kelly, 3 Misc. 3d 936, 776 N.Y.S.2d 772 (N.Y. Sup. Ct. 2004). Justice Stallman wrote that the police commissioner "exercises broad discretion to manage the Police Department, necessarily including deployment of personnel and their assignment to appropriate duties." Id. at 938. Nevertheless, Justice Stallman concluded that the Patrol Guide -- which sets forth personnel rules governing the NYPD -- permitted "modified assignment" status only when there is misconduct or disciplinary action anticipated. Id. at 941. Here, no disciplinary action was anticipated by the time the Article 78 was commenced, and the criminal charges had already been tried to verdict. Id. at 938, 942. Thus, the court concluded that Boss could not be kept on "modified assignment," although he could be assigned to a variety of other non-full duty assignments. Id. at 942. "It is clear," however, the court wrote, "that petitioner's demand for full duty status is a demand for restoration of his gun." Id. at 940. As to that, the court concluded that the Patrol Guide did not require that Boss's gun had to be restored, and that the decision not to restore the gun was within Commissioner Kelly's "broad discretion to manage the Police Department." Id. at 938, 940. Thus, the court granted the petition in part and remanded the matter to the Commissioner for further action consistent with the opinion. Id. at 943.

The Appellate Division, First Department, later affirmed that determination, writing that "[t]he Commissioner's determination not to return the petitioner to full duty status does not violate departmental rules, . . . and the decision not to restore his weapon was within the Commissioner's rationally exercised discretion. The Commissioner's stated reasons for denying restoration to full duty are neither irrational nor arbitrary and capricious." Boss v. Kelly, 17 A.D. 3d 269, 270, 793 N.Y.S.2d 423 (1st Dep't 2005) (internal citation omitted). Shortly thereafter, the NYPD changed Boss's duty status to "Full Duty No Gun." (Compl. ¶ 25.)

In April 2006, Boss took military leave from the NYPD and deployed to Iraq as a marine, where he saw combat. (Compl. ¶ 27.) Upon his later discharge from active military duty and return to the NYPD, Boss requested that he be restored to full duty with a gun (Compl. ¶ 32); he was, however, given the same assignment and duty status that he had prior to his military leave: "Full Duty No Gun." (Compl. ¶ 31.) As a result, according to the Complaint, his status has earned him the "mocking moniker 'Kenny NoGun' among his colleagues." (Id.)

On March 12, 2007, Boss initiated the present action pursuant to 42 U.S.C. § 1983, alleging in Count 1 that the City of New York, the NYPD, and Commissioner Kelly violated his property rights without due process by virtue of his duty assignment and in Count 2 that Commissioner Kelly violated his liberty rights without due process by filing an affidavit in the Article 78 proceeding that effectively "brands Plaintiff as incompetent and dangerous on the authority of sheer speculation." (Compl. ¶ 43.) Boss seeks injunctive and declaratory relief and compensatory and punitive damages. Defendants now move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

II. Discussion

A. Legal ...


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