April 02--NEWPORT NEWS -- A federal appeals court has reinstated a lawsuit brought by a Newport News police officer who claims the city wrongfully stripped him of his power to make arrests, write traffic tickets and enforce the law.
The U.S. Court of Appeals for the Fourth Circuit partially reversed in March a Norfolk federal judge's ruling a year ago that dismissed the suit that the officer, Cory M. Hall, filed against the city in 2009. The Court of Appeals determined that part of Hall's suit might have merit and should not have been thrown out.
After getting fired from the police force in early 2007, Hall won his job back through a grievance procedure later that year. But when he was finally hired back in late 2008, the former patrol officer was ordered to work in the records bureau, a job he said was previously held by a civilian.
Though Hall still wears a badge and a uniform, and carries a gun, he contends the assignment makes him "something other than a police officer."
"Taking these allegations as true, Hall's reinstated position within the Department effectively excludes him from his trade or calling as a police officer," the federal appeals court ruled on March 14.
Because that qualifies as a "significant demotion," the court ruled, "Hall has properly alleged a deprivation of his liberty interest in his reputation and occupation."
The ruling doesn't necessarily mean Hall will ultimately prevail in the case. But it does mean it's heading back to the lower court for further proceedings. The case could be dismissed for another reason, be settled out of court, or end up before a jury.
Hall on Friday voiced guarded optimism with the ruling. "I'm certainly pleased," he said. "I'm happy about the decision. It's a step in the right direction ... But how many years is it going to take? How long does it have to drag out before they get the idea?"
Hall was fired in January 2007 after complaints against him in two 2006 trespassing arrests -- that he manipulated paperwork in one case, and roughed up an arrestee in another. He appealed his firing to a three-member grievance panel, which tossed some of the charges, reduced another, and voted 2-1 in October 2007 to give him his job back.
But the city still refused to rehire him, saying the panel's decision did not comport with city policy. Hall pushed the issue in court, with Circuit Judge Timothy S. Fisher ordering in September 2008 that the city hire Hall back. The city finally relented three months later -- after Fisher threatened to hold city officials in contempt of court.
But when Hall returned to work, police brass banished him to records and barred him from issuing tickets or making arrests. Police cited a letter from Commonwealth's Attorney Howard Gwynn saying he no longer trusts Hall as a courtroom witness.
In October 2009, Hall filed the federal suit against the city. Also named as defendants are Police Chief James Fox, Assistant Chief Joe Moore, City Manager Neil Morgan and former City Manager Randy Hildebrandt. Hall is asking for $5 million in damages.
Hall contends that the defendants violated his constitutional due process rights by dragging their feet on his reinstatement and relegating him to the records room. He wants back pay for 13 months, and said he's being deprived of $20,000 a year in lost promotions, overtime court pay and extra duty pay.
Stanley Barr Jr., an attorney with Kaufman & Canoles representing the city, asserts that Hall was properly given his job back following the grievance decision.
"The language of the grievance panel was that he be reinstated," Barr said. "Our position is that he was reinstated to the Police Department. Putting him in records was not a demotion."
Barr said Hall has suffered no loss in base pay or benefits.
In April 2011, U.S. District Chief Judge Rebecca Beach Smith sided with the city, dismissing the case and saying Hall had failed to state a claim.
Smith ruled that the city has broad discretion to manage employees -- including to "establish job requirements," and "to assign and direct" employees' work. She said the city was within its rights to make him work in records.
As for the 13-month delay in reinstating Hall, Smith also said that most of that, or 10 months, was part of a continuing legal dispute between the parties. The last three-month stretch, she said, isn't significant enough to qualify for a constitutional rights violation.
Hall appealed, leading to last month's appeals court ruling that upheld Smith's decision in part and reversed it in part. The higher court upheld Smith's ruling that the delay did not amount to a constitutional rights violation. But it reversed Smith's ruling dismissing Hall's claim regarding his banishment to records.
In a sharply worded dissent, one of the three judges on the three-member appellate panel, Appeals Court Judge Roger L. Gregory, said he would have sided with Hall on both counts. He said the facts that Hall alleged are sufficient to claim an "unconstitutional obstruction" on the city's part.
The city, Gregory wrote, was obligated to immediately rehire Hall upon the grievance panel's decision.
"Willful refusal to abide by a final and binding order because you do not agree with the decision is not standard procedural delay," Gregory wrote. "It is categorically unreasonable and, in certain circumstances, could amount to an obstruction of justice."
Gregory continued: "Cory M. Hall, a police officer decorated with commendations including Police Officer of the Year and a Medal for Valor, has experienced what no officer in the City of Newport News has ever had to endure: a willful refusal by the city to comply with a final and binding decision ordering his reinstatement."
In recent days, the city of Newport News' attorneys, Barr and Johan Conrod Jr. of Kaufman & Canoles, have asked the Appeals Court for a rehearing. Meantime, Hall's lawyers, Kevin Shea and Joe LaBell Jr., have asked the full court of appeals to revisit the issue over the delay.
The case also could have implications for another Newport News police officer, Jason Diedrich. Like Hall, he has also been stripped of his power to make arrests and enforce the law.
In 1995, Diedrich was arrested and charged with perjury and larceny of $1,000 from a drug dealer. But he was acquitted in court on both counts, and won his job back through a grievance panel that cleared him of any wrongdoing.
But as with Hall, police have cited Gwynn -- and the prosecutor's refusal to use Diedrich as a courtroom witness -- for why he can't make arrests. Diedrich has fought the case for several years, most of them without an attorney, but courts have dismissed the case.
Diedrich, who is now working as an instructor in the Police Department's training academy, declined to comment Friday on whether the Hall case could have an impact on his own situation.
He said, however, that "I have the utmost respect for the struggles that Cory Hall is going through, and I understand the impact it has on his family and his career. I am hoping that all of this can somehow be ironed out and that a resolution can be found."
Copyright 2012 - Daily Press, Newport News, Va.
