Archive for Thursday, September 16, 2004

Dismissed lawsuits against city appealed

September 16, 2004

Lawsuits filed against the City of Baldwin City which had been dismissed last month by a U.S. District Court Judge have been appealed to the 10th Circuit Court of Appeals in Denver.

"We have appealed," said Dennis Hawver, the Ozawkie attorney who represents two former and two current members of the Baldwin Police Department. "We just don't believe the judge is right."

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U.S. District Court Judge Carlos Murgula granted the city's request for summary judgment in the case which claims violation of the officer's First and 14th Amendments and dismissed the case. The First Amendment claim is freedom of speech and the 14th Amendment claim is due process. Hawver contends his clients, who received minor discipline and appealed that through the city's grievance procedure, didn't receive a fair shake.

"What I interpreted from the ruling was they had due process through the (city) council. We don't believe that," Hawver said. "We believe there was a huge political struggle going on at the time and that effected it. We just don't think the judge's ruling was in line with the court law."

Bob Bezek, former city attorney who is still representing the city in the case which seeks in excess of $75,000 for each of the four officers, sees the judge's ruling differently.

"I know that Mr. Hawver has filed an appeal on behalf of his clients," said Bezek. "I was hoping they would abide by the court's decision.

"I think out of the district court decision a couple of things are clear. Number one, that we're talking about modest amounts of discipline," he said. "I think the court clearly stated that there was reason for that. The second thing is these guys got a fair process. They appealed it up the chain and had plenty of time to appeal it before the city council."

The officers received either written reprimands or a day's suspension without pay. They then followed the city's grievance procedure which then City Administrator Larry Paine followed to the letter, Bezek said.

"I think the court's decision made it very clear that the city administrator made sure everyone was treated fairly and as far as I'm concerned we can thank Larry Paine for that," he said.

The lawsuits were filed in January 2003 by former officers Bill Dempsey and Chuck Woolsencroft and current officers Eric Garcia and Chuck Hensley, who were then serving under then Police Chief Steve Butell. At question was the officers' attempts to warn the chief about a problem with another officer who resigned in the summer of 2001. Butell resigned in the summer of 2003 and was eventually replaced by current Chief Mike McKenna.

All four officers are not on board with the appeal specifically, Hawver said, but the lawsuits remain tied together.

"I have been authorized by two of my clients to go along with the appeal," said Hawver. "The other two who are currently employed by the police department are a still a part of it. They have not instructed me to pursue it.

"I am not at all disappointed they are taking the safe way because they have jobs with the police department and families to consider," he said.

Bezek said that didn't matter, either.

"That doesn't surprise me and it doesn't change anything," he said. "Frankly, I've got to defend the entire case whether it's two or four that bring it up. It makes no difference."

Both attorneys agreed it will probably be a year before the case is reconsidered.

"It'll probably be a year away in my experience with the court of appeals," Hawver said.

"Yes, pretty much I don't have any reason to disagree with that," said Bezek. "There will be a lot going on with it before then, though."

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