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Firefighters, Families Lose Lawsuit Over Fatal House Fire

Three firefighters perished in a house fire that occurred on September 24, 2016 in the City of Wilmington, Delaware. Three other firefighters were badly injured in the same fire. The three injured firefighters – Fire­fighter Brad Speakman, Senior Fire­fighter Terrance Tate, and Lieutenant John Cawthray – as well as the estates and survivors of the three deceased fire­fighters – Lieutenant Christopher Leach, Senior Firefighter Jerry Fickes, and Se­nior Firefighter…

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Due Process Violated When New Charges Added After Hearing

Adam Procell is a sergeant with the Baker, Louisiana Police Department. When Procell and another officer responded to an alarm at a Baker charter school, they found an open door but no signs of criminal activity. As they were exiting the building, they heard approximately ten gunshots appearing to come from a distance of roughly 50 yards. Upon requesting backup, Procell was informed that a window had been shot…

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No Due Process Right To ‘Retired Officer Handgun License’

Joseph Oquendo was a detective with the NYPD. Before he retired, Oquendo was arrested and charged with DWI. While the criminal charges were pending, NYPD denied Oquendo’s anticipatory application for a retired police officer handgun license. Had one been issued, Oquendo could have legally possessed a concealed handgun within New York City. Though a jury acquitted Oquendo of the criminal charges, NYPD opened an internal investigation into the circumstances…

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Racist Comments From Hearing Board Member Violate Due Process

Jonathan Stevens was a police officer with the Town of West Terre Haute in Indiana. On October 31, 2017, Stevens was arrested and charged with disorderly conduct and felony domestic battery committed in the presence of a child less than 16 years old. Prior to these charged crimes, Stevens had never been reprimanded or disciplined for any violation, and he had been promoted to a supervisory role in the…

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Cleveland Recruits Lose Due Process Claim By Not Requesting Hearing

As part of the curriculum for the February 2018 Cleveland Police Academy, recruits were required to complete notebook assignments that they would periodically submit for grading. One component of the notebook entries that recruits had to complete is known as a “Student Performance Objective.” A Student Performance Objective is a short statement of policing standards. Several of the Academy’s instructors began to suspect that some of the recruits were…

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‘Sexting’ Officer Has No Due Process Rights

Gary Harris was the police chief of Algood, Tennessee, population 4,419. Justin Medlin and Vaughan Larson were officers in the Department. Larson and Medlin began a relationship and exchanged explicit messages over Facebook. Medlin was also engaged in romantic or sexual relationships with several other city employees, including City Councilwoman Jennifer Green. When Medlin sent a nude photo of himself to a cousin of the Chief, the City began…

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Dual Role Of City Attorney Does Not Violate Due Process

Kevin Johanns was a firefighter with the City of Muncie, Indiana. Throughout his employment, he struggled to comply with the applicable rules and regulations. On numerous occasions between 2004 and 2010, Johanns reported late to work, called in sick repeatedly, and was given verbal and written reprimands. In 2012, Johanns was assigned to Battalion Chief Clevenger. On multiple occasions, he was absent without leave or called in sick. He…

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Romantic Relationships And Due Process

Hosea Word is a sergeant and aspiring lieutenant in the Chicago Police Department. When he took the departmental lieutenants’ exam in 2006, he was ranked 150th of all candidates. The sergeants ranked 1 through 149 all received promotions. Sergeant Word was the highest-scoring candidate who did not. In 2015, when Word next took the exam, his ranking fell to 280th. He was passed over a second time. Word sued,…

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No Due Process Right For Probationary Employees To Remain On Layoff List

Good news is not on the way when a court starts its opinion in your case by writing: “A chance at a job is not a right to it. When the government has broad discretion to take a benefit away from its employees, that benefit is not a constitutionally protected property interest.” The case began when corrections officers Claudio Tundo and Ruben Gilgorri were laid off by Passaic County,…

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Police Chief May Have Due Process Rights

In 2013, the Village of University Park, Illinois hired Eddie Bradley as its police chief. In the occasionally tumultuous world of small-town politics, this didn’t last long, and soon after a municipal election in 2015, the mayor and Village Board placed Bradley on administrative leave. The Village fired him 13 days later, without giving him notice of good cause or an opportunity to be heard. The letter from the…

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The Lesser The Discipline, The Less ‘Process That Is Due’

Like most Supreme Court opinions, the procedural due process decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) is painted with a very broad brush. This has left it to the lower courts to more precisely define the amount of ‘process that is due’ under Loudermill. As illustrated by a Pennsylvania case, one basic principle that has developed over the years is that there is a…

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Defect In Firefighter’s Pre-Disciplinary Letter Violates Due Process

On November 1, 2013, Paul Moss was at home and off duty from his employment with the Shelby County Fire Department in Tennessee. His wife was attending a political rally at an interstate overpass on Quince Road in Memphis. The rally consisted of, among other things, participants holding a banner calling for the impeachment of President Obama. When the rally engendered some negative feedback from passing motorists, participants began…

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What Due Process Rights Are Chiefs Owed, And When?

The federal Ninth Circuit Court of Appeals, not always known for the brevity of its decisions, has recently used a case involving the termination of Spokane Police Chief Frank Straub as the vehicle to succinctly describe whether chiefs are entitled to due process upon their termination, and if so, when. Due process rights come in two varieties, depending upon whether the employee has a “property right” to the job….

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City Required To Bargain Over Procedures Used For Due Process Hearing

The City of Long Beach, New York and Local 287 of the International Association of Firefighters (IAFF) are parties to a collective bargaining agreement. In November 2014, Local 287 member Jay Gusler reported that he was injured in the line of duty, and began what turned out to be a long-term absence from work. A year later, the City informed Gusler that the City “is evaluating whether to exercise…

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No Due Process Requirement For Reprimands

Deborah Upchurch is a supervisor with the City of Orange Township, New Jersey. After an internal affairs investigation, the City issued Upchurch a written reprimand for insubordination. Upchurch challenged the reprimand, alleging it was issued without due process. An appeals court in New Jersey dismissed Upchurch’s claims. The Court began by citing the Supreme Court’s decision in Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532 (1985) for the…

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Firefighters Lose Due Process, Bill Of Rights Claims

Patrick Leonard and Steven Barrett are Los Angeles firefighters. After they failed a psychological exam and were transferred out of the Arson Counter Terrorism Section, they sued the City claiming violations of due process and the California Peace Officer and Firefighter Procedural Bill of Rights Acts. The federal Ninth Circuit Court of Appeals rejected the firefighters’ claims. With respect to the argument that their transfer violated their due process…

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Officer Received Adequate Due Process Before Being Placed On Brady-Type List

John Gantert began working as a police officer in Rochester, New Hampshire in March 2005. For six years he was viewed as a “good and productive officer” and had no disciplinary actions reflected in his personnel file. Upon beginning his shift on March 24, 2011, Gantert was instructed to assist another officer in booking an individual arrested for domestic violence. As part of the Department’s standard operating procedure in…

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No Due Process Rights For At-Will Police Officers

Tracey L. Johnson and David James, Jr. were police officers for the City of Shelby, Mississippi. On September 1, 2009, the City’s Board of Aldermen voted to terminate Johnson and James, allegedly based on “citizen complaints about the officers profiling, targeting, and harassing people.” Johnson and James claim that they were terminated because they refused to ignore the alleged illegal activities of City Alderman Billings. Employees of the City…

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Fire Chief’s Discipline Violates Due Process

Jesus “Jesse” Alba became chief of the City of Waukesha, Wisconsin Fire Department in May 2013. Two months later, the City of Waukesha mayor filed charges alleging that Alba had violated Department rules and the City’s anti-harassment policy. The mayor alleged that Alba had not disclosed during his interview for the position that he and a Department employee under his command had an affair in 2012 or that, when…

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Officer Wins Nearly $1 Million On Due Process Claim

In 2012, the City of McPherson, Kansas terminated Police Officer Matthew Michaels. The charges against Michaels were: “Argumentative with superiors, insubordination, conduct unbecoming an officer, sleeping on duty, numerous other circumstances and situations where he was no longer viable to be a police officer.” The City failed to grant Michaels a due process hearing before or after terminating him. The City also documented the reasons for Michaels’s termination in…

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Relying On Uncharged Offenses Violates Due Process

Since many of the public safety employees in Mississippi have “at-will” status with no job protections, it is a rare event for a Mississippi court to address due process issues. But that rare event just occurred in the case of Trooper First Class Sammy Ray of the Mississippi Highway Safety Patrol. The charges against Ray were limited to his encounters with four specific motorists: Kacie Patterson, Joshua Ulmer, William…

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Due Process Requires Pre-Discipline Hearing Even If Appeal Rights Exist

A common misperception is that if an employee has access to a meaningful post-discipline appeal, the employer need not grant the employee a pre-disciplinary hearing. As the Village of Minerva Park, Ohio recently discovered in federal court litigation, the Supreme Court’s decision in Loudermill v. Cleveland Board of Education requires pre-disciplinary hearings in all cases where an employee has a property right to the job, even if a post-disciplinary…

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Conviction Of Misdemeanor Crime Of Domestic Violence Extinguishes Due Process Rights

William Arganda was employed as a peace officer by the City of Westminster, California. Following an internal investigation, Arganda was served with a Notice of Intent to Terminate on August 11, 2009, for multiple violations of Department policy involving unauthorized use of the law enforcement data system for personal business. After a pre-disciplinary hearing, the City terminated Arganda. Arganda made a timely request for a post-disciplinary appeal hearing, and…

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No Due Process Rights When Entire Department Eliminated

A group of officers with the Los Angeles County Office of Public Safety (OPS) sued the County, claiming their due process rights were violated when the County consolidated the operations of the Office into the Sheriff’s Department. The officers contended, among other things, that they were automatically entitled to sworn positions in the Sheriff’s Department. The federal Ninth Circuit Court of Appeals disagreed with the officers and dismissed their…

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Due Process Hearing Need Not Follow Evidentiary Rules

Captain Calvin Bankhead is a 25-year veteran of the Gary, Indiana Fire Department. In November 2001, Bankhead was selected for random drug testing. When Bankhead’s test results showed that he had consumed marijuana, the City’s Civil Service Commission demoted him, suspended him for nine months, and subjected him to additional random tests. Bankhead challenged the Commission’s decision, arguing that the records of his drug test should not have been…

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