United States District Court, W.D. New York
[Copyrighted Material Omitted]
For Dennis Delano, Plaintiff: Jeffrey B. Novak, Steven M. Cohen, LEAD ATTORNEYS, HoganWillig, Getzville, NY.
For City of Buffalo, Buffalo Police Department, Daniel Derenda, individually and in his Capacity as Deputy Police Commissioner of the City of Buffalo and Interim Police Commissioner of the City of Buffalo, Dennis Richards, Individually and in his Capacity as Chief of Detectives of the Buffalo Police Department, Byron Brown, Individually and in his Capacity as Mayor of the City of Buffalo, Defendants: Joseph S. Brown, LEAD ATTORNEY, Adam W. Perry, Hodgson Russ, LLP, Buffalo, NY; Mary B. Scarpine, LEAD ATTORNEY, PRO HAC VICE, City of Buffalo Department of Law, Buffalo, NY; Timothy Alfred Ball, LEAD ATTORNEY, City of Buffalo Department of Law, Buffalo, NY.
For H. McCarthy Gipson, individually and in his former capacity as Police Commissioner of the City of Buffalo, Defendant: Joseph S. Brown, LEAD ATTORNEY, Adam W. Perry, Hodgson Russ, LLP, Buffalo, NY; Mary B. Scarpine, LEAD ATTORNEY, PRO HAC VICE, City of Buffalo Department of Law, Buffalo, NY; Terrence M. Connors, LEAD ATTORNEY, James W. Grable, Jr., Connors & Vilardo, LLP, Buffalo, NY; Timothy Alfred Ball, LEAD ATTORNEY, City of Buffalo Department of Law, Buffalo, NY.
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief United States District Judge.
Thirteen-year-old Crystallynn Girard was found dead in her South Buffalo home on Valentine's Day, 1993. Her mother, Lynn DeJac Peters, was accused of strangling the young girl. Peters was eventually tried and convicted of second-degree murder in Erie County court; she was sentenced to 25 years to life imprisonment.
Among those testifying for the prosecution before the grand jury was Dennis Donahue, a one-time boyfriend of Peters who had quarreled with her on the night in question. Though once a potential suspect, Donahue passed a polygraph examination, and, by virtue of his grand jury testimony, received immunity from prosecution.
DNA tests performed years after the jury returned its verdict -- tests not available at the time of the trial -- indicated that male DNA was present in skin cells found in a smear of blood on a bedroom wall, on her bedding, and on Girard herself. Donahue, who was later convicted of strangling another woman, could not be excluded as a contributor to the DNA. Based in large part on this evidence, after 13 years in prison, Peters was released.
On February 13, 2008, approximately two months after Peters' conviction was vacated, then-Erie County District Attorney Frank Clark announced that a renewed investigation, which included a new medical examination of Girard's body performed by two new forensic pathologists, revealed that Girard's death was the result not of strangulation as the original medical examiner had found, but of " acute cocaine intoxication" -- an accidental drug overdose. In a public statement, Frank Clark concluded that Girard's death was " non-homicidal" and that " no one can be prosecuted for her death."
The plaintiff in this case, Dennis Delano, an erstwhile Buffalo Police detective and member of the department's cold-case squad who began investigating the Girard case in 2007, remained doubtful about the cause of Girard's death. He believed Donahue murdered Girard. And he therefore continued to investigate the case on his own time and his own dime. In the course of that investigation, he spoke to the media and released footage related to the case. Those actions, the Buffalo Police Department contended, violated various departmental regulations and were in contravention of direct orders from his superiors. The Police Department therefore brought disciplinary charges against Delano.
A hearing was held in connection with those charges, and an impartial hearing officer, or IHO, eventually rendered a 28-page decision in which he determined that Delano committed misconduct; the IHO recommended a 60-day unpaid suspension. The Buffalo Police Commissioner at the time, H. McCarthy Gibson, accepted the IHO's findings and recommendation. Less than one month later, Delano voluntarily retired from the police force.
Delano subsequently brought this suit under 42 U.S.C. § 1983 alleging that his suspension violated, as relevant here, the First Amendment of the United States Constitution. He also brings a breach-of-contract claim, alleging that his suspension violated a collective-bargaining agreement.
Each of the defendants -- Mayor Byron Brown, the Buffalo Police Department, the City of Buffalo, Daniel Derenda, Dennis Richards, and H. McCarthy Gipson -- has moved for summary judgment. As discussed further below, principally because this Court finds that Detective Delano's actions were sufficiently disruptive to justify the suspension, and because there was
no breach of contract, Defendants' motions are granted.
Dennis Delano began a storied career at the Buffalo Police Department in 1985 as a precinct officer. In 2006, having risen to the position of detective in the homicide unit, he was asked to help form a cold-case unit. He soon began working on this newly formed unit, and was free to investigate any of the old, unsolved homicides he chose. He picked up Crystallynn Girard's file in early 2007.
Shortly after, on March 6, 2007, then-Commissioner Gibson issued a directive prohibiting all employees from speaking to the media unless authorized by Gibson himself, the deputy commissioner, or Michael DeGeorge, who occupied the newly created position of special assistant to the commissioner for communications. The next month, Chief of Detectives Dennis Richards emailed Delano, informing him that officers must refer all media requests to DeGeorge.
Several months later, in November 2007, Peters was released from prison as a result of newly discovered DNA evidence. The homicide unit was assigned to work on the case anew, and the Buffalo Police Department made it clear that others were not to have any involvement. In fact, one day after Delano returned a phone call from a witness in the case, Richards sent an email in which he " hereby ordered that any and all inquiries for information involving witnesses or suspects  regarding the Crystallynn Girard homicide case . . . be directed to Sgt. Daniel Rinaldo of the Homicide Squad." (Ex. B of Richard Decl.; Docket No. 44-2.) If there remained any confusion, then-Deputy Commissioner Daniel Derendna sent an email the very next day, writing, " The DeJac case has been turned over to Sgt[.] Rinaldo[']s crew. No one else for any reason is authorized to work on this case. Consider this a direct order." (Id.) There is no dispute that Delano was aware of these orders and that he was not a member of Sgt. Rinaldo's team.
On February 13, 2008, only a few days after these emails were sent, Erie County District Attorney Frank Clark issued a statement that Girard was in fact not murdered, but died of a drug overdose. Clark based this conclusion on a " re-examination" of " all items of evidence" and principally the examinations of forensic pathologists Dr. James Woytash and Dr. Michael M. Baden. (Clark Stmnt.; Docket No. 46-12.) Both pathologists arrived at the same conclusion: Girard died of " acute cocaine intoxication." Thus, Clark concluded, " No one can be prosecuted for [Girard's] death." (Id.)
But Detective Delano was unpersuaded. Pointing to the DNA evidence and the evidence of a struggle, he was convinced that Donahue committed the crime. In fact, he believed that the new cause of death was simply a convenient way for the District Attorney's office to dodge scrutiny over its decision to immunize Donahue by having him testify before the grand jury.
In pursuit of this theory, and for his " own personal knowledge," Delano travelled to Washington, D.C. -- on personal time with his own money -- for a forensic-science convention to " learn more about accidental overdoses and to apply any information to the Girard case and others." (Delano Aff., ¶ 62.) There he met a reporter, Scott Brown, from WGRZ in Buffalo, New York. He spoke to Brown on camera in an interview that aired soon after. During the course of the interview, Delano informed Brown that he was speaking for himself -- not on behalf of the department. That disclaimer was not aired, but the following three comments were:
o " To me, it just doesn't seem like there's enough evidence of an overdose to change a death certificate."
o " We have more questions now than we did originally."
o " Absolutely, absolutely [I would like to see the case reopened]. I'm not convinced justice was done in this case."
Ex. P of Risman Decl.; Docket No. 44-6.) Delano also provided Scott Brown with photographs taken soon after Girard's death depicting Girard's bedroom, and a video-recording of Donahue's polygraph examination.
That interview and those disclosures led to disciplinary charges. The Police Department alleged that Delano violated direct orders and various rules and regulations by continuing to investigate the case, speaking to the media about the case, and releasing departmental investigative materials. According to the Buffalo Police, it was also concerned that Delano's conduct ...