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Duffelmeyer v. Marshall

January 29, 2010



Plaintiffs William C. Duffelmeyer, Michael Walther, Steven Heisler, Jeff Nardi, Stephen M. Carpiniello, Edward Arce, Ralph Tancredi, Peter T. DeVittorio, Michael Marinelli, and Arthur Marinelli commenced this action pursuant to 42 U.S.C. § 1983, wherein they allege that the defendants Lawrence Marshall, David Hall, and the Town/Village of Harrison, New York violated their First Amendment right to free speech. Presently before this Court is the defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP").*fn1 For the reasons that follow, defendants' motion is granted in full.


The following facts are gathered from the parties' statements pursuant to Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, from the pleadings and from affidavits, affirmations and exhibits submitted by the parties in support of their contentions. Any disputes of material fact are noted.

The Town/Village of Harrison is located in the State of New York. In 2007, the above-named plaintiffs were police officers at the Town/Village of Harrison Police Department ("HPD"). Tancredi, at the same time, was president of the Harrison Police Association ("Association"). At times relevant to the present action, Lawrence Marshall was a lieutenant and David Hall was the Chief of Police of HPD. Hall was also the president of the Chiefs of Police Association ("CPA").

In January 2007, Tancredi reviewed the donations received in December by the Association. He noticed that one of the Association's customary donors, the Brae Burn Country Club ("Club"), had not made its annual donation for 2006. Later that month, Tancredi mentioned to James Sarlo, an employee at the Club, that the Association had not received said donation. Sarlo told Tancredi that he would confer with Maria Conti*fn2, the comptroller of the Club. Sarlo called Tancredi at a later date and advised that the Club had written a check to the Association in early December 2006. After further investigation into the Club's bookkeeping, Sarlo called Tancredi again to inform him that the check had been altered and deposited elsewhere.

Thereafter, Tancredi spoke with Conti and Bob Meyers, then-general manager of the Club, on several occasions. In early February 2007, Conti advised Tancredi that Hall picked up from the Club the check intended for the Association. In a telephone conversation, Meyers also told Tancredi that Hall had picked up the check.

In January or February 2007, Walther, a detective at HPD, accompanied by non-party Detective Issa Kharouba, went to the Club to inquire about the missing check. Walther's visit was intended to obtain the check from the Club. A secretary at the Club advised Walther that Hall had already picked up the check. Later, Walther and Kharouba made a second trip to the Club. They spoke with Conti. Conti stated that the check, in the amount of $2500.00, had been intended for the Association, but that the payee had been altered. Thereafter, Conti faxed a copy of the altered, cashed check to Walther at HPD. At that time, plaintiffs learned that "Harrison" had been crossed out on the payee line and someone had substituted in "Chiefs". Thus, someone altered the payee name from the "Harrison Police Association" to the "Chiefs Police Association".

On March 28, 2007, plaintiffs (and non-party officers) wrote a letter ("Letter") to Anthony Marraccini, then a captain, deputy chief, and second in command at HPD. Marraccini was also HPD's internal affairs officer. Plaintiffs relayed that (1) Tancredi, as president of the Association, realized that the Club's customary donation to the Association did not come in; (2) after making inquiries to the Club, the Club and other members of the Association discovered that a check had been written to the Association but it had been altered and deposited in the account for the CPA; (3) Hall was then president of the CPA; (4) Hall picked up the Association check personally; (5) the Club did not authorize anyone, including Hall, to alter the name of the payee; (6) Walther, then-vice president of the Association, asked Hall if he had any checks intended for the Association; (7) Hall said he did not have any funds or checks intended for the Association; (8) Tancredi and other members of the Association sought legal advice based on the belief that someone had intentionally altered and redirected the check; and (9) the purpose of the Letter was to notify HPD of the incident and request an investigation into the matter. They requested to be notified of the results of any investigation. They also reserved their rights, "as potential crime victims", to seek the assistance of another law enforcement agency should they be dissatisfied with the results of HPD's investigation.

The Letter also stated, "As this would constitute a criminal act, it is the understanding of the members of the [Association] with knowledge of this possible crime that we have an obligation to report the incident to [HPD]." The signatories wrote further, "We would also like to note at this time that we are making this notification due to our legal and departmental duties." In addition, they aired concern about potential retaliation by HPD's administration. Tancredi, Walther, Arce, DeVittorio, Duffelmeyer, Heisler, Carpiniello; and non-party officers-Kharouba, police officer John Audia, and detective lieutenant Douglas J. Buschel-signed the letter with their respective police department titles and badge numbers.

On March 30, 2007, Tancredi and Heisler returned to the Club. They spoke with Conti and the general manager of the Club. Conti said that Hall picked up the check intended for the Association, but could not recall if she actually saw him. The same day, Tancredi and Heisler delivered copies of the March 28, 2007 Letter to the Town Clerk for distribution to the Town Board. They also delivered a copy to Marraccini's mailbox behind his desk at HPD.

Shortly after receiving the Letter, Marraccini asked Marshall, then a lieutenant at HPD, to meet with him at headquarters. Upon Marshall's arrival, Marraccini showed him the Letter and the two discussed how to investigate the matter. They drafted a list of questions ("Questionnaire"), to ask of each person who knew of the situation, in order to ascertain all the facts. Marraccini decided not to notify Hall, who was out of town at the time. The next day, Marraccini instructed Marshall to contact all the signatories of the Letter to have them come in to headquarters. The purpose was to have each of them fill out the Questionnaire. Marraccini told Marshall to have the individuals fill out the Questionnaires in different areas of the police station so that they could not confer with each other. In addition, from some responses, Marraccini and Marshall discovered that additional police officers became aware of the allegations during a dinner meeting at P.F. Chang's. Thus, Marraccini and Marshall later called in those officers, specifically Michael Marinelli and Arthur Marinelli, to fill out the Questionnaire as well. Most of the officers arrived at the station, believing that Marshall formally issued an order to them.*fn3 The Questionnaire explicitly stated, "You are directed to immediately upon receipt of this order provide me with the following information and/or documentation. Your report will be completed without delay or interruption." Each of the named plaintiffs understood that if they did not comply with the order-issued by a superior-that he would be subject to disciplinary action for failing to obey a direct order.*fn4 Neither Marraccini nor Marshall further articulated this threat. Tancredi also testified that Marraccini told him no disciplinary charges would result from the Questionnaires.

Tancredi did not understand why plaintiffs were ordered to the station. He thought the process was atypical of an investigation in that crime victims usually volunteer statements, but are not required to do so. Marraccini recalled that both Tancredi and Walther asked for representation in connection with filling out the Questionnaire. Arce asked Marraccini and Marshall if he could speak with his attorney, however, he was denied said request. Of note, the Questionnaire specifically stated, "This is an internal affairs document you [sic] are prohibited from reproducing or disseminating this document or the information contained here in [sic]. You are directed not to discuss this investigation with any persons at this time." Marraccini directly told Arce not to discuss the situation with anyone. Both Michael Marinelli and Arthur Marinelli were also told not to discuss the investigation with anyone. Although DeVittorio did not fill out the Questionnaire, Marshall told him that he was not to discuss the pending investigation.

On April 1, 2007, the Town/Village of Harrison Board of Trustees ("Board") met to discuss the Letter. The Board told Marraccini that the investigation should be turned over to the Westchester County District Attorney for investigation. The Board further instructed Marraccini to cease his own investigation. Later that day, Marraccini called Hall. He informed Hall of the allegations contained in the Letter and the instructions of the Board. On April 2, 2007, Marraccini, accompanied by the Town/Village of Harrison's attorney Jonathan Kraut, turned the investigation over to the Westchester County District Attorney ("DA"). The Public Integrity Unit of the DA's office thereafter continued the investigation.

On April 6, 2007, plaintiffs filed the present action, alleging First Amendment rights violations. On April 19, 2007, the complaint appeared in the Westchester Guardian newspaper. On April 23, 2007, the DA interviewed both Tancredi and Walther in conjunction with its investigation. Hall went to the DA's office as well. On May 24, 2007, the DA issued a report on its investigation. Therein, it named James Sheehy as the individual ...

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