Court Kickstarts Due Process Claim Of Officer Fired for Motorcycle Gang Ties
Groff v. Reading, E.D. Pa., No. 5:11-cv-03641, 10/23/12
- Key Holding:Officer has triable due process claim because he allegedly was not informed he could be fired for ties to motorcycle gang members.
- Key Takeaway:Policy that is not facially ambiguous may be found unconstitutionally vague as applied to an employee who did not know a first-time violation warranted discharge.
By Anne A. Marchessault
A civil service police officer can advance his due process claim against the city of Reading, Pa., based on his firing for ties with an outlaw motorcycle club, the U.S. District Court for the Eastern District of Pennsylvania decided Oct. 23 (Groff v. Reading, E.D. Pa., No. 5:11-cv-03641, 10/23/12).
Because the Reading Police Department’s “associations policy” might have been unconstitutionally vague as applied to Mark Groff, the court said, he has a triable claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983) for violation of his procedural due process rights under the Fourth Amendment to the U.S. Constitution.
Groff can establish municipal liability because he alleged that he was fired as a direct result of policies promulgated by the chief of police, the court ruled.
“Accordingly, I conclude that a jury could conclude that plaintiff has identified a possible improper municipal policy and that the policy is a direct cause of the termination of his employment as a police officer,” Judge James K. Gardner wrote.
Observed With Outlaw Motorcycle Gang
The police department hired Groff as a civil service police officer in 2005.
When he was hired, Groff received Police Department General Order No. 0408, purported to be a progressive disciplinary policy.
The policy contained penalty recommendations and reckoning periods, which had actually been rescinded by the Pennsylvania Labor Relations Board in 2003.
Groff allegedly did not know about the rescissions.
Groff belonged to the Reading Chapter of the Leathernecks Motorcycle Club, a nationally recognized club made up of honorably discharged U.S. Marines.
During Groff’s employment with the city, police department members saw him associate with members of a notorious outlaw motorcycle gang called the Pagans Motorcycle Club.
The Pagans are involved in various criminal activities including the manufacturing and distribution of methamphetamines, prostitution, and serving as hired hit men for organized crime. Pagans President Bobby Quinter, with whom Groff allegedly associated, usually armed himself with hammers, knives, and ax handles.
In June 2008, Groff was observed riding his motorcycle, while off duty, with at least one other individual who was wearing a Pagans patch on his jacket.
On March 17, 2009, Quinter came to help jump-start Groff’s motorcycle with the help of another member of the Pagans.
Groff and his wife then attended a motorcycle event on April 5, 2009, that also was attended by members of the Pagans. Groff greeted Quinter with a half-hug and a pat on the shoulder, and they spoke privately for approximately five minutes.
Reading Chief of Police William Heim initiated an investigation into Groff’s suspected contacts with the Pagans the next day.
Groff acknowledged during the investigation that he had known Quinter for a number of years. He admitted to showing the Pagans respect to avoid any violence being inflicted on his own motorcycle club.
Associations Policy Allegedly Violated
Heim determined that Groff’s conduct warranted charges of four violations of General Order No. 0408, including the order’s “associations policy.”
The policy stated that officers shall not associate with persons “who have a reputation in the community for present involvement in felonious or criminal behavior.” Based on Groff’s responses during the investigation, Heim concluded that he violated the policy by regularly and voluntarily deferring to the Pagans, and by agreeing to abide by rules set by the outlaw motorcycle gang.
Heim recommended Groff’s discharge, and Reading Mayor Thomas M. McMahon terminated his employment June 24, 2009. The city council upheld the decision.
Groff filed suit against the city June 6, 2011, under Section 1983 for violation of his procedural due process rights. The city moved for summary judgment.
Vague for First-Time Violation
The court advanced Groff’s claim that the associations policy was unconstitutionally vague.
He first argued that the term “association” was vague as it applied to his contact with the Pagans.
To establish that a policy is unconstitutionally vague, the court explained, Groff had to show that the policy did not give fair notice that his conduct would put him at risk of discipline.
The court found that the language of the associations policy was not void for vagueness on its face. “Here, the policy states exactly what a police officer is not allowed to do, and any person with common sense would be able to figure out what it prohibits,” Gardner wrote.
“Accordingly,” he said, “plaintiff had notice of the conduct which the policy prohibited.”
As the court noted, Groff argued further that the associations policy did not put him on notice that he could be fired for engaging in the conduct for which he was discharged. He contended that General Order No. 0408–as he received it–purported to provide for a maximum 10-day suspension for a first offense violation of the associations policy.
Although the court determined that the language of the associations policy was not vague on its face, it concluded that its application may make it unconstitutionally vague because Groff was not informed that his employment could be terminated for a first-time violation.
Passes to Jury on Proximate Cause
The court rejected the city’s argument that Groff could not proceed on his procedural due process claim because he did not challenge the constitutionality of the other three policies under which he was discharged.
Groff argued that he was fired only under an unconstitutionally vague policy for his association with the Pagans; the city contended that even if the associations policy were unconstitutionally vague, Groff’s claim would fail because he still was fired for violations of three other policies.
The court held that Groff needed only to demonstrate that there was a constitutional violation, and that the violation was a cause of his injury.
As Gardner explained, “there can be other contributing factors to plaintiff’s termination, but that does not vitiate his constitutional claim.”
The court decided it was for a jury to determine the basis for Groff’s firing.
“Just because the employer had other reasons for firing plaintiff does not mean that one unconstitutionally vague City policy was not one of the causes of his termination,” the court ruled.
Brooke M. Boyer in Reading, Pa., and Jana R. Barnett in Wyomissing, Pa., represented Groff. Andrew B. Adair and Christine D. Steere of Deasey Mahoney Valentini & North in Media, Pa., represented the city.
By Anne A. Marchessault
Text of the opinion is available at http://about.bloomberg.com/blaw2/files/2013/01/Groff-Ruling.pdf.