Final Exam requirements: This is a take-home exam consisting of three factual scenarios with questions following each. Note that question 2 in particular alleges a couple different causes of action; make sure you address both. You may use any outside source to assist you in your answer, except for another person (and subject to the specific limit for questions 2 and 3.) You must answer all 3 questions. 1. Assume you are a sergeant in the Examland Police Department, a 500-officer department in the city of Examland, state of Fiction. You are assigned as a street supervisor for uniform patrol, and currently have 14 patrol officers who report directly to you. One day you are in court. With all your spare time, you have time to check up on how two of your rookie patrol officers testify in court. Your city has a public defenders officer staffed with exceptionally sharp young lawyers, and you dont want the confidence of your young officers rattled under the withering cross-examination of the public defenders. (I told you it was fictional!) As you exit the courtroom and enter the hallway, a citizen comes up to you. Pointing to your sergeants stripes, the citizen asks if you are a supervisor. Yes, maam, I am, you answer in your best Gary Cooper voice (google it for those that dont get the reference!). What seems to be the problem? The citizen points to a police officer (Officer Creepy) who used to work for you, but was transferred to another squad some months ago. The citizen tells you that he parked beside that officer as they both came to court that morning. He relates that he saw the officer take what appeared to be graphic child pornography (pictures) from the front seat of his patrol car, open the trunk, and then place the photos in a briefcase, which he then took into court. The citizen felt that the officer clearly had seen the material, as the officer said This is pretty nasty stuff- its for a case I have this morning as he snapped shut the briefcase. According to the citizen the officer just looked kinda nervous when he saw that I saw him. Intrigued, the citizen kept an eye on the officer throughout the days docket. Other than 4 traffic matters for which he testified, the officer did not appear to be involved in any other cases that morning. Officer Creepy worked for you for about 2 years. While you never had the occasion to formally write him up for any specific violations of departmental policy, you never thought he was a good cop. He always struck you as strange, and said his career goal was to get on the Special Victims Unit where (in his words) all the action was. Frankly, you were glad when he changed squads. Officer Creepy is standing in the hallway, about 50 feet away. He is talking on his cell phone, and not walking away. You quickly ask the citizen for ID, and ask him how sure he is of what he saw. The citizen shows you ID, as well as a military retiree ID card. Im a retired Air Force missile officer, I held a top-secret clearance for 23 years, and I wouldnt make something like this up, he says. Creepy ends his cell phone call, and appears to be heading for the exit. If you dont do something now, you may never find out what is in his briefcase. Officer Creepy! Id like a word with you please you call. Creepy stops and you walk over to him. Officer Creepy, have you got anything in that briefcase that I should know about? you ask. He replies Hey Sarge- I dont work for you anymore- I see youre still micro-managing everyone. Still trying to see if I filled out all my paperwork correctly? Convinced that something is amiss, you tell Creepy that you are giving him a direct order to open the briefcase, as you tell him you suspect him to be in violation of departmental policy. He complies, and inside the briefcase you see 4 summonses, his codebook, and a manila envelope with PERSONAL written across it. You state forcefully, Whats in the envelope Creepy? A citizen told me he saw you looking at stuff you shouldnt be lookin at. He replies, I know all about that Garrity and Gardner stuff Sarge- I aint saying nothing. As he says this, he closes his briefcase and begins walking away. If youll excuse me, today is supposed to be an off day and Im done with court. What are your options? Address how Garrity and Gardner may apply to this situation, as well as any 4th amendment concerns. Can you order him to wait at court until you contact his current supervisor? Can you order him to give you the briefcase? What about ordering him to show you whats in the manila envelope? Assume that in the state of Fiction, it is a felony to possess child pornography. Also assume that Examland PD regulations state that an officer shall not read anything in court while awaiting his case to be called that could be considered pornographic or prurient, even if legal. This has generally been interpreted as magazines such as Playboy and Penthouse, although you seem to remember a memo last month reminding officers that it was unprofessional and a violation of policy to be reading the Sports Illustrated swimsuit edition in uniform in court. 2. Read the following complaint, taken from an actual case. The question is at the end of the complaint. STEVE ARMBRUSTER, Plaintiff, v. JOHN C. CAVANAUGH, in his official capacity as Chancellor of the Pennsylvania State System of Higher Education; F. JAVIER CEVALLOS, individually and in his official capacity as President of the Kutztown University of Pennsylvania; WILLIAM F. MIOSKIE, individually and in his official capacity as Chief of the Kutztown University Police Department, Defendants. Complaint PRELIMINARY STATEMENT 1. This is an action under 42 . 1983 and the United States Constitution challenging the deprivation of Plaintiff’s rights under the First and Fourteenth Amendments to the United States Constitution. Corporal Steven Armbruster was suspended from duty as a police officer for 1) telling his chief that an order to push demonstrators off campus was unconstitutional and for 2) failing to carry out an order to remove a “disorderly” demonstrator even though he knew the demonstrators were not disorderly. 2. While Corp. Armbruster was ultimately reinstated, [*2] he has been financially harmed due to his suspension and risks termination should he respect demonstrators’ right to speak in the future. 3. Corp. Armbruster seeks a permanent injunction to require Defendants to remove the disciplinary letter from his file and to prevent Defendants from punishing him in the future for respecting demonstrator’s rights. 4. Corp. Armbruster seeks declaratory relief, attorney’s fees and costs, and nominal and compensable damages for, among other things, lost wages due to the discipline. JURISDICTION AND VENUE 5. This court has jurisdiction under 28 . 1331, 1343(a)(3), 1343(a)(4), 42 . 1983, and the First and Fourteenth Amendments to the United States Constitution. 6. Venue for this action properly lies in this Judicial District pursuant to 28 . 1391(b) because Defendants reside within this Judicial District, and all or substantially all of the events that give rise to the claims in this action occurred in this District. PARTIES 7. Plaintiff Steve Armbruster [*3] is an adult individual residing in Lehighton, Pennsylvania. He is Corporal with the Kutztown University Police Department. 8. Defendant John C. Cavanaugh is the chancellor of the Pennsylvania State System of Higher Education. The State System of Higher Education is responsible for the activities and training of the Kutztown University Police Department and employs Corp. Armbruster. Mr. Cavanaugh is being sued in his official capacity. 9. Defendant F. Javier Cevallos is the president of the Kutztown University of Pennsylvania and was acting under color of state law during all times relevant to this Complaint. The University also directs the activities and training of the Kutztown University Police Department. Additionally, Mr. Cevallos gave orders to Corp. Armbruster during the incident in question. Mr. Cevallos is being sued in his official and individual capacities. 10. Defendant William F. Mioskie is the Chief of the Kutztown University Police Department acting under color of state law during all times relevant to this Complaint. He is being sued in his official and individual capacities. FACTUAL ALLEGATIONS 11. Corp. Armbruster has been a police [*4] officer with the Kutztown University Police Department for 17 years. 12. On April 18, 2007, approximately fifteen individuals with Repent America demonstrated on an outdoor public forum area of Kutztown University’s campus. 13. During the demonstration, approximately 300 counterdemonstrators, representing several different organizations and clubs, assembled. 14. The counterdemonstration became loud and Repent America was asked by Corp. Armbruster and Lieut. Dillon to move away from certain buildings, at which time Repent America began to do so. 15. Various students became upset and contacted University personnel about the content of Repent America’s message. 16. Other police officers and Chief Mioskie responded to the scene along with University President Cevallos. 17. President Cevallos asked Corp. Armbruster to “push” Repent America off campus. 18. President Cevallos considered some of the speech offensive and necessary to be removed. 19. Corp. Armbruster did not reply to any of President Cevallos’ requests to get the group off of campus. Therefore, President Cevallos approached Chief Mioskie to force the group off campus. 20. The demonstration [*5] was peaceful and in no way disorderly. However, Chief Mioskie determined that the situation was disorderly since the counterdemonstrators became upset with Repent America’s message. 21. Chief Mioskie began yelling at the leader of Repent America, Michael Marcavage, to inform him that the members of the group were no longer allowed to speak on campus. 22. After President Cevallos reached Chief Mioskie, the chief ordered Corp. Armbruster to “push” Repent America off campus. 23. Corp. Armbruster objected to the chief’s order, replying that it violated the group’s civil rights. 24. Corp. Armbruster understood that in following the chief’s order he would be asked to arrest or threaten group members with arrest under the disorderly conduct statute. 25. Corp. Armbruster believed that the order was wrong and that the demonstrators were not disorderly. He feared that limiting the demonstrators’ ability to speak would subject him to liability. 26. Corp. Armbruster did not have an employment duty that required him to inform the Chief of the unconstitutionality of the situation, but instead he spoke as any other citizen concerning a matter of public concern, the violation [*6] of demonstrators’ rights under the First Amendment. 27. Corp. Armbruster’s brief statement did not undermine the orderly working of any legitimate duty of the police department. 28. Chief Mioskie relieved Corp. Armbruster of his duties and told him to leave the scene. 29. Prior to the completion of Corp. Armbruster’s conversation with Chief Mioskie, Mr. Marcavage was already arrested by another officer. 30. Mr. Marcavage was charged with disorderly conduct, and subsequently found innocent of the charges. 31. On April 20, 2007, Corp. Armbruster was notified that he was placed on paid administrative leave for his conduct at the demonstration and was asked not to report for duty or be on campus for his next three shifts before a Pre-Discipline Conference could be held on April 23, 2007. 32. It is believed and therefore averred that Chief Mioskie and President Cevallos together determined that Corp. Armbruster should be placed on leave and that a Pre-Discipline Conference should be conducted because of Corp. Armbruster’s statement and because he did not immediately remove the demonstrators. 33. Following the conference, Corp. Armbruster was given official [*7] notice of suspension without pay for five working days for failure to carry out the direct order to remove a person who was ordered to disperse due to the subject’s disorderly actions. 34. Corp. Armbruster has lost about $ 600 in wages. 35. Due to the disciplinary action, Corp. Armbruster has a disciplinary letter on file that may prevent his promotion to Sergeant. 36. Corp. Armbruster has also been warned that should he refuse to obey such an order in the future that he risks termination. 37. Chief Mioskie and President Cevallos were aware of the discipline. 38. It is believed and therefore averred that Chief Mioskie and President Cevallos instigated and directed the discipline because of Corp. Armbruster’s statement and because he did not immediately remove the demonstrators. 39. It is believed and therefore averred that Chief Mioskie, as chief of the police department, directs the disciplinary process and that President Cevallos, as president of the university, has oversight over the disciplinary process. 40. It is believed and therefore averred that Chief Mioskie and President Cevallos each had the power to undo the discipline but they chose [*8] not to do so. 41. Corp. Armbruster has subsequently only received menial job assignments and more significant job assignments have been given to officers of lower seniority. He has also been denied training and received a low performance evaluation. It is believed and therefore averred that Chief Mioskie affected his job assignments and training due to Corp. Armbruster’s expression of concerns of others’ constitutional rights and lack of immediate cooperation with unconstitutional orders. 42. On August 28, 2008, Chief Mioskie and President Cevallos received a fax explaining that the discipline Corp. Armbruster received was improper due to the constitutional issues at stake and asking that the disciplinary letter and the threat of termination be retracted. 43. No changes occurred on account of the fax, and Corp. Armbruster never heard back regarding the fax. ALLEGATIONS OF LAW 44. Corp. Armbruster exercised his First Amendment right in expressing concern that forcing demonstrators off of campus would violate the demonstrators’ constitutionally protected right to free speech. 45. He also refused to immediately cooperate with undermining the demonstrators’ [*9] constitutional rights by forcing them off campus for exercising their First Amendment rights. 46. Though the chief claimed that the demonstrators should be arrested for disorderly conduct, they were not disorderly and it would be unconstitutional to burden their rights on the basis of inapplicable law. 47. As a result, Corp. Armbruster was suspended and lost about $ 600 in wages, faces the possibility of termination under similar circumstances, and is being positioned to be passed over for promotion. 48. Corp. Armbruster, acting with the duty as a law enforcement officer to refrain from depriving the constitutional rights of others, exercised his right to refuse to immediately follow unconstitutional orders, which would have resulted in the violation of others’ speech, assembly, free exercise of religion, and Fourth Amendment rights, all protected through the Fourteenth Amendment. 49. All of the actions of Defendants, their officers, agents, servants, and employees, as alleged herein, were conducted according to order of the President of the University and Chief of Police on the basis of the content of the demonstrators’ speech. 50. The State System of Higher [*10] Education and the University failed to train its police departments and police chiefs to prevent them from misusing laws like the disorderly conduct statute to remove persons engaged in First Amendment activities. 51. The lack of adequate training of the Chief constitutes deliberate indifference to the constitutional rights of demonstrators and police officers respecting those constitutional rights. 52. Corp. Armbruster has suffered irreparable injury and suffers the threat of irreparable injury to his constitutional right through termination should a similar situation occur. FIRST CAUSE OF ACTION Retaliation for Right to Free Speech 42 . 1983; First and Fourteenth Amendments to the . Constitution 53. Plaintiff hereby realleges all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 54. Plaintiff’s expression of concern about the violation of other individuals’ constitutional rights is itself protected speech. 55. Plaintiff was immediately relieved of his duties when he merely expressed those concerns and sought to discuss the issue with the Chief of Police. [*11] 56. Defendants, including the University, President Cevallos, and Chief Mioskie, retaliated against and punished Plaintiff’s speech by relieving him of his duties, investigating him, suspending him, disciplining him, and otherwise targeting him. 57. Defendants’ actions thus constitute a violation of Plaintiffs’ rights under the Free Speech Clause of the First Amendment to the United States Constitution as incorporated and applied to the states through the Fourteenth Amendment. WHEREFORE, Plaintiff respectfully prays that the Court grant the equitable and legal relief set forth hereinafter in the prayer for relief. SECOND CAUSE OF ACTION Violation of Right to Refuse to Violate Others’ Constitutional Rights 42 . 1983; Fourteenth Amendment to the . Constitution 58. Plaintiff hereby realleges all matters set forth in the preceding paragraphs of this Complaint and incorporate them herein. 59. Plaintiff would have been liable for violation of others’ constitutional right if he would have immediately obeyed the orders given to him by the President and the Chief. 60. Plaintiff had a clear duty to [*12] refrain from depriving the demonstrators’ rights to speech, assembly, free exercise of religion, and freedom from unlawful arrest. 61. Plaintiff, under the duty to refrain, had the concurrent right to refuse to deprive the demonstrators’ right to free speech. 62. Defendants, including the University, President Cevallos, and Chief Mioskie, punished Plaintiff for failing to immediately obey the chief’s unconstitutional order. 63. Defendants’ actions undermined Plaintiff’s constitutional right to choose to refrain from violating others’ right to free speech. 64. Defendants’ actions thus constitute a violation of Plaintiffs’ rights under the United States Constitution as incorporated and applied to the states through the Fourteenth Amendment. WHEREFORE, Plaintiff respectfully prays that the Court grant the equitable and legal relief set forth hereinafter in the prayer for relief. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray for judgment as follows: A. That this Court declare that Defendants’ actions violated the First and Fourteenth Amendment rights of Plaintiff; B. That this Court grant a permanent injunction requiring Defendants [*13] to remove the disciplinary letter from Plaintiff’s file and to prevent Defendants from punishing Plaintiff in the future for respecting demonstrators’ rights; C. That this Court award nominal and compensable damages; D. That this Court award Plaintiffs’ costs and expenses of this action, including reasonable attorneys fees, in accordance with 42 . 1988 and other applicable law; and, E. That this Court grant such other and further relief as the Court deems equitable, just, and proper. Armed with your newly minted masters degree from SaintLeo, you have been made a federal district court judge. Assuming that all of Arbrusters factual allegations can be proved, does he have a case? Write the opinion as if you were the judge. 3. The following factual scenario is taken from an actual case. Please read the excerpt and then answer the question at the end. You may not look up the actual court opinion. Submission of an answer for this question certifies that you did not look at the actual case. Andrew was employed by the Baltimore Police Department from June 1973 until his employment was terminated in September 2004. At the time of his termination, Andrew served as a Major, a command level rank. On or about December 8, 2003, an elderly man named Cephus Smith killed his landlord over a rent increase and barricaded himself in his apartment. Andrew was the commander of the Eastern District of the BPD and responded to the barricade situation. There were four commanders at the scene of the barricade. The senior officer was Colonel Carl Gutberlet. Andrews only duty at the crime scene was to supervise the officers assigned to perimeter street control. Andrew requested that a Technical Assistance Response Unit(“TARU”) look inside the suspects apartment to gain additional intelligence. He also instructed the BPD officers to continue their attempts to negotiate with the suspect. TARU officers under the command of another BPD official arrived at the scene. The unit entered the suspects apartment and shot and killed the suspect (the “Smith shooting”). Following the Smith shooting, Andrew repeatedly asked that the BPD include him in a review and investigation of the shooting given the fact that there were no hostages and no evidence that the suspect intended to commit further violence from within his apartment. Despite his requests, Andrew was not included in any BPD investigation of the Smith shooting. On December 17, 2003, Andrew submitted his memorandum to Defendant Kevin P. Clark, the former police commissioner of the BPD, in which Andrew expressed his concern regarding whether the Smith shooting was justified and whether it was handled properly. Andrew asserted that the TARU officers had not exhausted all peaceful non-lethal options and that the department had unnecessarily placed officers in harms way. Andrew was not under a duty to write the memorandum as part of his official responsibilities. He had not previously written similar memoranda after other officer-involved shootings. Andrew would not have been derelict in his duties as a BPD commander, nor would he have suffered any employment consequences, had he not written the memorandum. The memorandum was characterized by Clark as unauthorized.” The task of investigating officer-involved shootings falls upon the BPDs Homicide Unit and the Internal Affairs Division. Andrew did not work within either of these units nor did he have any control over their investigations. Clark ignored the Andrew Memorandum. Thereafter, Andrew contacted a reporter from the Baltimore Sun newspaper, explained the situation, and provided the reporter with a copy of his memorandum. Andrew did not serve as a media spokesperson for the BPD. He provided his memorandum to the Baltimore Sun reporter because of his concern for public safety. On January 6, 2004, the Baltimore Sun published an article (the “Sun Article”) regarding the Smith shooting. It highlighted the concerns raised in the Andrew Memorandum. Following publication of the Sun Article, the BPD subjected Andrew to an Internal Affairs investigation. He was charged with giving confidential internal information to the media. As a result, Andrew lost command of the BPDs Eastern District and was placed in a less desirable position in the Evidence Control Unit. He also did not receive a stipend of $3,900 a year he had previously received as a BPD District Commander. In July 2004, Clark ordered Andrew to retire. Andrew responded that he would retire only if the pending Internal Affairs charges against him were dismissed and he was awarded paid time off. Clark did not accept Andrews offer. Nevertheless, Defendant Kenneth Blackwell, a BPD deputy police commissioner, provided Andrew with paid time off. Subsequently, Andrew was placed on “out of pay” status. His compensation and benefits were terminated. Thereafter, Andrew returned to the BPD and made himself available for work. After returning to work and not receiving any pay, Andrews counsel sent letters to the BPDs Office of Legal Affairs, complaining that Andrews First Amendment rights were being violated. Andrews counsel also advised the City Solicitor that Andrew intended to bring multiple claims under Maryland law against Defendants for violating his civil rights. Andrew also wrote Blackwell, requesting information about his status. Blackwell responded to Andrew that he was “handling this all wrong.” Andrew was given a personnel order, dated October 27, 2004, which terminated his employment effective September 20, 2004, for “failing to respond to the Fire and Police Retirement Office.” On November 10, 2004, the then Mayor of Baltimore removed Clark as the BPD police commissioner. Clark was replaced by Defendant Leonard Hamm. Prior to Clarks termination, Hamm had sympathized with Andrew regarding his situation. Hamm had expressed an interest in retaining Andrew as a member of his command staff. When Hamm learned that Andrew was preparing to sue the BPD, however, his attitude changed. He maintained the termination order originally issued by Clark. Hamm received notice of the instant lawsuit on December 3, 2004. On that date, he ordered Andrew to return to work. In an exchange of correspondence, Hamm indicated that Andrew had not been reinstated but was in a “no pay status,” and that if Andrew refused to return to work, he would be deemed to have abandoned his position with the BPD. Andrew returned to work at the BPD. He was not returned to his position as a Major and the Internal Affairs charges against him have not been dropped. On November 29, 2004, Andrew filed this action under 42 . 1983.. Andrew claims that his 1st amendment rights were violated by the demotion, and has filed a 1983 suit. Does he prevail in his lawsuit? Why/ why not?
