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Shannon Dorsett, Individually and As the Administratix of the Estate v. County of Nassau

June 7, 2012

SHANNON DORSETT, INDIVIDUALLY AND AS THE ADMINISTRATIX OF THE ESTATE OF JO'ANNA BIRD, PLAINTIFFS,
v.
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, OFFICE OF THE NASSAU COUNTY DISTRICT ATTORNEY, DETECTIVE ROBERT ARIOLA, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, POLICE OFFICERS AND/OR DETECTIVES JOHN AND JANE DOES 1 -- 10, DISTRICT ATTORNEY JOHN AND JANE DOES 1 -- 10, AND LEONARD VALDEZ CRUZ, DEFENDANTS. POLICE BENEVOLENT ASSOCIATION OF THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU, NEW YORK, INC., INTERVENING PARTY.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF

DECISION AND ORDER

On February 23, 2012, the Police Benevolent Association of the Police Department of the County of Nassau, Inc. ("PBA") moved for dual relief. The PBA moved: (1) for leave to intervene in this action, and, (2) if such leave to intervene was granted, to enforce this Court's December 15, 2011 Confidentiality Order with regard to statements made by Presiding Officer Peter Schmitt in a press interview on February 7, 2012.

In a decision by this Court rendered on May 22, 2012, the Court granted the motion by the PBA to intervene in this action. In addition, the Court directed the non-party Presiding Officer Peter Schmitt to show cause on May 31, 2012 why the Court should not find him in contempt of the Court's prior December 15, 2011 Confidentiality Order.

I. BACKGROUND

The Court need not recite all the prior facts and occurrences in this major Section 1983 wrongful death action. However, a review of some of the prior facts and orders are necessary in order to lay the foundation for the resolution of a serious charge -- the violation of a court confidentiality order. The relevant events in this case occurred within a relatively short time.

This Section 1983 wrongful death action was commenced on March 19, 2010. It involved the tragic death of the Plaintiff's daughter, Jo'Anna Bird, a young mother, at the hands of Leonardo Valdez-Cruz, her former boyfriend and the father of her child. Valdez-Cruz was convicted of the murder of Jo'Anna Bird, and is currently serving his sentence. This civil rights death action against the Nassau County Defendants attracted the attention of the public and several media organizations. In particular, the media and the public were interested in the contents of a Nassau County Police Department Internal Affairs investigation report with regard to the facts in this case. This report is entitled the Internal Affairs Unit Report 14-2009 (the "IAU" Report). The report documented the internal investigation of the Nassau County Police Department into the death of Jo'Anna Bird.

The Nassau County Defendants moved for an injunction and/or a protective order prohibiting the disclosure of the IAU Report. In a decision dated January 14, 2011, United States Magistrate Judge A. Kathleen Tomlinson issued a detailed and thorough memorandum decision and order granting a protective order, which restricted access to the IAU Report to the parties in this litigation.

On July 22, 2011, the parties advised the Court that they had reached a settlement, subject to the approval of the Nassau County Legislature (the "Legislature"). Following the conditional settlement, a substantial period of time ensued without any word from the Legislature. As a result, the Court called in the parties to review this unresolved settlement situation. At a hearing on December 15, 2011, this Court was advised that the members of the Legislature asked to read the IAU Report before they either approved or declined to approve this substantial monetary settlement. Accordingly, in order to resolve this long delayed situation, this Court issued a Confidentiality Order on the date of the hearing, December 15, 2011. The purpose of the Confidentiality Order was to permit members of the Legislature to review the IAU Report so that they could make an informed decision as to whether to approve the settlement. The Confidentiality Order of December 15, 2011, stated, in part, as follows:

3. Notwithstanding the parameters of the protective order . . . the Confidential Material [including the IAU Report] may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to members of the currently-sitting Nassau County Legislature and their in-house counsel for the sole purpose of deliberating the issue of approval of the Settlement Agreement and Release.

No person given access to the Confidential Material or information contained therein shall be given possession of same; nor may they copy, duplicate, photograph, record, transcribe (or have transcribed), take notes, or in any way memorialize the contents of the Confidential Material.

Any conversation, discussion, deliberation, communication regarding, or mention of, the Confidential Material shall be done in Executive Session and, under no circumstances shall same be communicated, disseminated, released, or disclosed to members of the public, the media or anyone other than duly-elected members of the Nassau County Legislature and their in-house counsel.

7. Every person given access to the Confidential Material or information contained therein shall be advised in writing and acknowledge in writing and acknowledge in writing in the form attached hereto as Exhibits A and B, that disclosure of Confidential Material is a violation of New York State General Municipal Law Article 18, the New York State Civil Rights Law § 50-a, as well as the Nassau County Code of Ethics and, further acknowledges to be subject to contempt of court and/or other sanctions for non-compliance with this Order.

9. In the event of a breach or violation of any term or condition of this Order, the County Defendants shall have the right to seek enforcement of the terms hereof and the imposition of any other appropriate remedy including, but not limited to, sanctions and contempt.

(Docket Entry No. 128) (emphasis added.)

The clear and specific procedures for viewing the IAU Report, described in the Confidentiality Order, were carefully drawn to ensure that only those persons designated by the Order would be permitted to review the contents of the IAU Report. This brings us to this contempt proceeding. It was alleged by the intervenor PBA that on February 7, 2012, in a videotaped Cablevision Editorial, Nassau County Presiding Officer Schmitt made several statements to an interviewer that the PBA alleges revealed certain contents of the IAU Report that were protected from disclosure by the Confidentiality Order. The statements allegedly made by Presiding Officer Schmitt were preceded by the following language in the videotaped editorial:

The case demonstrates a top to bottom failure of Nassau's police department.

So says Nassau Presiding Officer Peter Schmitt, telling News 12 he was disgusted by what he learned after reviewing an internal affairs investigation kept confidential by court order.

According to the videotaped Cablevision Editorial, Presiding Officer Schmitt then made the following statements, which constitute the basis for this motion for sanctions:

"There are 22 police officers in this county who were mentioned in that confidential internal affairs report who ought to be ashamed to look at themselves in the mirror every morning when they get up to shave, much less be wearing the badge," Schmitt said. "Orders of protection were ignored . . . mandatory arrests were called for and not performed, giving a cell phone to the prisoner when he was behind bars and allowing him to call the victim 35-40 times, and on and on and on."

II. THE HEARING

First, Deputy Chief of Patrol Neil J. Delargy of the Nassau County Police Department testified in a closed courtroom. He was in Internal Affairs from September 2007 to January 2012. Chief Delargy oversaw the Bird case and is familiar with the IAU Report. He testified as to the Report's contents and was examined as to whether the four statements made by Presiding Officer Schmitt were gleaned from information contained in the Report.

Second, in the intervenor's case, the Cablevision Editorial video in which the Presiding Officer made the statements set forth above, was placed in evidence and shown to the Court. The statements made by the Presiding Officer in the video are in the exact language as set forth above in this opinion.

Presiding Officer Schmitt then testified in his case. He described the duties of the Nassau County Legislature and the additional duties of the Presiding Officer. He also testified about the role of the legislature in the settlement of cases against the County of Nassau. In particular, he stated that it is the duty of the legislature to support or disapprove all settlements with the County of Nassau. As to the Jo'Anna Bird case, the settlement came to his attention in September or October 2011. Previously, he had read Newsday articles on the case, including on April 13, 2010 (Dfts' Ex. B); April 14, 2010 (Dfts' Ex. A); and on May 1, 2009 (Dfts' Ex. C). The April 14, 2010 article concerned violations of orders of protection. The April 13, 2010 article concerned the Valdez-Cruz murder trial. Presiding Officer Schmitt also testified with regard to the court proceeding concerning the confidentiality of the IAU Report and Judge Tomlinson's decision preserving the confidentiality of the IAU Report.

After the Jo'Anna Bird wrongful death action was settled, the Legislature was advised by the County Attorney that the settlement was for $7.7 million dollars subject to the consent of the Legislature. However, the Legislators were given no underlying documentation. The Legislators determined that they would not proceed to determine whether to consent to the settlement until they received the IAU Report. After several months, the County Attorney's Office eventually furnished the requested report. However, Presiding Officer Schmitt testified that: (1) he never reviewed the Court's Confidentiality Order; (2) he never reviewed the IAU Report; and (3) while he knew he had to sign an acknowledgment as to reviewing the IAU Report, he never signed the acknowledgment. Instead, he was orally briefed on the IAU Report by his attorneys on two or three occasions and he came to a conclusion on the issue of the consent to the settlement.

The Legislature convened to vote on the settlement on January 30, 2012. Presiding Officer Schmitt bypassed the usual committee procedure and placed the matter directly before the Legislature. Prior to the vote, he spoke on the record. Significantly, at that time he acknowledged that there was a confidentiality order in place.

As to the interview with News 12 on January 30, 2012, the Legislature had consented to the settlement and the Legislature press secretary told him that Newsday wanted to interview him and they had a deadline. Presiding Officer Schmitt walked to the end of the chamber to talk to News 12. At that time, he made the statements at issue in this proceeding. In his statement to the press, Presiding Officer Schmitt mentioned four facts that the PBA alleges were referred to in the IAU Report and form the basis of this contempt proceeding.

First, he stated that "there are 22 police officers in this county who were mentioned in the confidential internal affairs report who ought to be ashamed to look at themselves in the mirror every morning when they get up to shower, much less wearing the badge." Presiding Officer Schmitt testified that he did not know why he mentioned "22 police officers." On cross-examination, Presiding Officer Schmitt again stated that he did not read the IAU Report. He had his attorney read the Report and his attorney briefed him on the limitations. He had two or three briefings by his attorney as to the IAU Report. He discussed the Report with his attorney in his office and he also discussed it with legislators in the Executive Session prior to the vote. Of importance in this contempt proceeding, Presiding Officer Schmitt conceded that he was aware of the confidentiality requirement in the Court's Confidentiality Order. He understood that the Legislators could discuss the IAU Report with regard to the pending settlement, among themselves, but they were not to discuss the IAU Report for any other purpose. Again, as to the 22 police officers he referred to in his News 12 interview, Presiding Officer Schmitt testified that this was a number is his head; it was an "estimate".

The second statement made by Presiding Officer Schmitt in the News 12 interview was that "orders of protection were ignored." He testified that he knew that the District Attorney took the position that orders of protection were violated. He also read press reports that police officers were not doing their duty to enforce orders of protection. Presiding Officer Schmitt did not recall whether he was briefed on the fact that orders of protection had been ignored. The third statement made in the News 12 interview was that "mandatory arrests were called for and not performed."

The fourth and final statement made by Presiding Officer Schmitt to the news media, was that, "giving a cell phone to the prisoner when he was behind bars and allowing him to call the victim 35-40 times, and on and on and on." This was the most serious alleged violation of the Confidentiality Order. Presiding Officer Schmitt admitted that this information as to the "35 ...


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