Fairfax County Police Watch: This about sums about the idiocy we are paying for

US Court of Appeals for the Fourth Circuit - 907 F.2d 1459 (4th Cir. 1990)Argued Jan. 11, 1990. Decided July 12, 1990

Peter David Greenspun, Klein & Greenspun, Fairfax, Va. (Sarah Deneke, Klein & Greenspun, Fairfax, Va., on the brief), for plaintiff-appellant.

David John Fudala, Hall, Markle, Sickels & Fudala, P.C., Fairfax, Va., for defendants-appellees.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

Discharged Fairfax County Police Officer Gary Riccio brought an action pursuant to 42 U.S.C. § 1983, alleging that the process by which the decision to discharge him was made violated his procedural due process rights under the Fourteenth Amendment of the United States Constitution. Riccio named as defendants the County of Fairfax, Virginia, Fairfax County Executive J. Hamilton Lambert, Fairfax County Police Department Chief of Police John E. Granfield, and the Board of Supervisors of Fairfax County. After a hearing on motions for summary judgment brought by all the parties, the district court granted summary judgment in favor of the defendants. Riccio has appealed.

On June 24, 1987, Ann Elizabeth Stark contacted the Fairfax County Police Department ("the Department") to report that she believed that Riccio had made several obscene phone calls to her. Stark had tape recorded two of the calls. That evening, Stark informed Riccio's supervisor, Lieutenant Phillip Lively, that she received the alleged calls on June 21, 1987, and June 24, 1987. Stark apparently knew Riccio, first becoming acquainted with him when she was in high school and he, while on duty, would spend time on school grounds. The two apparently had subsequent encounters.

Lively immediately contacted the Department's Internal Affairs Section, which assigned Sergeant Steven Hardgrove to investigate the matter. Later that evening, Hardgrove contacted Riccio and interviewed him at some length. At the interview, Riccio denied making the calls. Riccio acknowledged that he knew Stark and that he first met her while she was in high school. He told Hardgrove that the relationship he established with Stark and other high school students was for the purpose of improving the image of the police department generally and establishing himself as a police officer to whom they could turn. He also informed Hardgrove that he was visiting his parents in Pennsylvania on June 21, the first day of the alleged calls to Stark, and he provided Hardgrove with specific information regarding his activities on June 24, the second day of the alleged calls to Stark.

After the interview, at 1:00 a.m. on June 25, Hardgrove informed Riccio that he was relieved of duty, with pay, pending further investigation of the matter. Also on June 25, Riccio received written notice that he was being investigated for violating Department Regulations 201.3 (governing obedience to laws and regulations) and 201.7 (governing standards of conduct).¹ Hardgrove instructed Riccio not to discuss the investigation with anyone.

As Hardgrove proceeded with his investigation, he learned that earlier in 1987, a woman named Jennifer Dundas had accused Riccio of making obscene phone calls to her. Although the record is not clear, it appears that Dundas decided not to pursue a formal complaint and the Department did not make any formal charges. Although, in his brief before us, Riccio claims that he was "cleared of all allegations of making obscene phone calls" to Dundas, there is no such indication in the record. Indeed, the report of Lt. Lively, who investigated the Dundas incident, states that Riccio admitted to calling Dundas, although he characterized the call as a practical joke.

Shortly after Riccio's suspension, several other relevant events occurred. According to Cheryl Beaudoin, a police dispatcher in Vienna, Virginia, Riccio informed Beaudoin, on June 25, of the charges pending against him.² On July 7, the Department conducted a polygraph exam on Riccio. Riccio contends that the Department ordered him to take the exam and in deposition testimony Hardgrove conceded that his directive was probably construed as an order. However, it is also true that the idea of taking a polygraph was first proposed by Riccio on the night of his suspension.³ Fairfax County Police Investigator Guy Morgan administered the exam and concluded that Riccio was "deceptive" in his responses.

Sheila Patterson appeals an order of the district court dismissing her amended complaint without prejudice. Patterson's complaint alleged that her employer, the police department of Fairfax County, Virginia, discriminated against her on the basis of her race and her gender, in violation of myriad civil rights provisions, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Patterson also alleged that she had been deprived of her civil rights under 42 U.S.C. §§ 1981 and 1983, and that the defendants¹ were liable under state law for intentional infliction of emotional distress.

The district court dismissed the entire amended complaint on the ground that, at the time Patterson originally filed this lawsuit, she had not obtained a letter from the U.S. Department of Justice (DOJ) permitting her to proceed in federal court with regard to the most recent allegations of Title VII violations contained in her complaint. Because the court erred both in requiring Patterson to have obtained a right-to-sue letter and in granting a motion to dismiss made only after Patterson had become entitled to such a letter, we reverse and remand this case for further proceedings.

According to the amended complaint, Patterson began working as an officer in the Fairfax County Police Department in 1983. In mid-1987, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging race and gender discrimination, harassment, and retaliation for having filed an internal grievance. She later filed another charge after being required to undergo, between June and October 1989, three psychological examinations to determine her fitness for duty. In August 1992, the EEOC finally issued "Just Cause Determinations" (JCDs) on both charges.²

About seven months later, in March 1993, Patterson was accused of throwing a message pad at another officer, striking him near an eye. Thereafter, Patterson was suspended and ordered to submit to yet another psychological examination. As a result of the March incident, Patterson filed a third charge with the EEOC. She also requested and received a "right-to-sue" letter from the DOJ regarding the two earlier charges.³ On June 16, 1993, while the third charge was still pending before the EEOC, Patterson filed her original complaint in the instant action. The EEOC acted much more swiftly on the third charge, issuing a JCD on September 14, 1993. Patterson did not, however, immediately request a right-to-sue letter on the third charge.

On December 6, 1993, the defendants moved for summary judgment, arguing that the doctrine of laches prevented Patterson from asserting her Title VII claims insofar as they were based on the incidents that were the subjects of the first two charges. At a hearing on the motion on December 17, the district court and Patterson's attorney agreed that events in 1993 may have been sufficient, if proven, to establish a continuing violation that would, in effect, revitalize the older incidents.⁴

During the hearing, the court asked Patterson's attorney whether a right-to-sue letter had been issued regarding the latest incidents. Counsel, apparently under the impression that the court was instead asking about the JCD that had been issued that September, incorrectly replied in the affirmative.

Because counsel desired to plead the latest incidents in greater detail--in particular the police chief's subsequent attempt to fire Patterson, which she alleged was in retaliation for her having filed the third charge--the court dismissed Patterson's complaint without prejudice and granted her ten days to file an amended complaint.

On the same day as the hearing, Patterson's attorney contacted the DOJ and requested a right-to-sue letter on the third charge. The letter was faxed to him on December 22, and was attached to the amended complaint when it was filed on December 27.

On January 7, 1994, the defendants filed, for the first time, a motion to dismiss based in part on jurisdictional grounds. In support of their motion, the defendants stated, quite correctly, that the latest right-to-sue letter had not been in existence at the December 17 hearing. Patterson's attorney confirmed to the court what had actually happened, and apologized for having misspoken. Upon being apprised of the facts, the court stated:

I don't believe that at the time this suit was filed, without a right-to-sue letter on the '93 claims, that I have any jurisdiction. Now, what I will do is grant the motion to dismiss without prejudice, and you can take it from there. And whether or not there is a [continuing violation], I will have to deal with when and if I see it again.⁵ But I don't believe that I can permit the amendment of a claim which was filed without jurisdiction here. And I believe that right-to-sue letter on the '93 claim is necessary for you to have jurisdiction, because, absent the '93 claim, everything else is timebarred.

True to its word, the district court dismissed the amended complaint without prejudice. Instead of refiling, Patterson chose to appeal.

The district court erred in requiring the actual issuance of a right-to-sue letter. Patterson's administrative remedies are deemed to have been exhausted--and jurisdiction thus conferred on the district court--when she became entitled to such a letter. Moore v. City of Charlotte, 754 F.2d 1100, 1104 n. 1 (4th Cir.), cert. denied, 472 U.S. 1021 (1985); Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093 (4th Cir. 1982); White v. Federal Express Corp., 729 F. Supp. 1536, 1552 (E.D. Va. 1990); Assa'ad-Faltas v. Commonwealth of Virginia, 738 F. Supp. 982, 985 (E.D. Va. 1989).⁶ As to her claim that the defendants retaliated against her for having filed the 1993 charge with the EEOC, Patterson does not even need a right-to-sue letter. Nealo

Morrogh finds cop he doesn’t love. In other news, hell freezes.

Probe of fatal police shooting goes to federal authorities

By Justin Jouvenal/Post

The Fairfax County prosecutor has turned over the investigation of a fatal police shooting of an unarmed Springfield man to federal authorities, citing complications with the five-month-old case.

Commonwealth’s Attorney Ray Morrogh said the U.S. attorney’s office for the Eastern District of Virginia has agreed to continue the probe into the death of 46-year-old John Geer, who was shot during a standoff with Fairfax County police in August. No one has been charged in the incident.

“There is a conflict of interest that has arisen in the case,” Morrogh said Thursday. “And there is a second potential conflict of interest that has arisen out of my office. . . . This is the prudent thing to do.”

Morrogh declined to describe the nature of the conflicts because the investigation is ongoing. The U.S. attorney’s office said Thursday that it could not confirm or deny any investigation or comment on pending investigations.

Police went to Geer’s Pebble Brook Court home on Aug. 29 because of a report of a domestic disturbance. Geer’s father, Don Geer, said his son was upset because his girlfriend, the mother of his two children, had decided to leave him.

John Geer had thrown his girlfriend’s belongings in the front yard. She called police and told them that Geer had a firearm. Police said they tried for about 50 minutes to persuade Geer to leave the home, but he refused.

Don Geer said he watched the climax of the encounter. He said that he could not hear what officers were saying to his son but that he saw him standing with empty hands resting on top of a screen door at the home’s entrance.

At some point, John Geer began to slowly lower his hands and an officer opened fire, hitting Geer in the chest, his father said. Geer retreated inside and closed the door. A SWAT team eventually entered the home and found Geer dead.

Don Geer said detectives later told him that his son did not have a gun on him at the time of the shooting but that there was a holstered handgun a couple of steps from the front door.

Don Geer said it appeared to him that the shooting was unjustified, but he was unsure what to make of the probe being turned over to federal authorities.

“I don’t know whether that’s good or bad — if I had a better idea of why they are doing it, I could form an opinion,” he said.

Geer and friends of his son have been critical of how long the investigation has taken, but Morrogh said police and prosecutors were working to explore all the evidence. He did not think federal prosecutors would have to start from scratch.

“No one wants these things to linger on,” Morrogh said.

Our ink will outlast his career

Under the reign of former Chief of Police Rhorer the Fairfax County Police arrested a man for not wearing clothes in his house while he made coffee, set up an eye doctor on a gambling charge and then used the SWAT team to kill him. An investigation into the charge that the Doctor’s primary clients were cops has never been investigated. The police gunned down an emotionally unstable man because cop who shot him wrongly assumed the man was trying to escape. He wasn’t. The cops also shot dead four other citizens under highly questionable circumstances. The department under Rhorer was sued multiple times by citizens. So did they fire Rhorer? Naw they promoted him. According to news reports Rhorer draws a salary of $191,168 per year as Deputy Fairfax County Executive as well as a concurrent pension from the Fairfax County police of $173000 per year.

Occupation by force

According to the most recent U.S. Census figures, nearly one in five Fairfax residents (17.5 percent) is of Asian descent while Hispanics make up nearly 16 percent of Fairfax’s overall population. Those numbers drop considerably when applied to the Fairfax County Police Department, where only 4.3 percent of officers are Asian and 4.1 percent Hispanic. White officers make up 84 percent of Fairfax County’s 1,360-member police department, significantly higher than the county’s general population (54 percent white). Almost 90% of the force lives outside the county.