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Police chief held to have qualified immunity with respect to First Amendment violation allegations

By Harvey Randall, Esq.

Police chief held to have qualified immunity with respect to First Amendment violation allegations
Gubitosi v. Kapica, CA2, 154 F.3d 30

After a local newspaper reported that Police Officer Lori Gubitosi of the Town of Greenburgh was a lesbian, Gubitosi became reluctant to perform strip searches on female prisoners. She feared charges of improper sexual conduct or a civil rights suit.

The problem came to a head on May 31, 1994, when she refused to obey her superior officer?s order to perform a strip search of a female prisoner. This resulted in Gubitosi?s agreeing to the forfeiture of five days? pay as an ?administrative penalty,? and waived her right to a disciplinary hearing.

The following month Gubitosi received two separate personnel evaluation reports criticizing her job performance. In response, she submitted two memoranda objecting to various police practices on June 28, 1994.

The practices criticized by Gubitosi included allegations that police officers (1) attended ?bagel parties? and birthday parties when they should have been performing police work at their assigned posts; (2) abandoned their patrol duties to take extended breaks at firehouses; and (3) drank and used obscene language while off-duty.

On July 22, 1994, Gubitosi was ordered by a superior officer to strip search three female detainees. Although she reported to her superior that she had done so, a subsequent search revealed contraband in the brassiere of one of the detainees. As a result of Chief John A. Kapica?s investigation, Gubitosi was suspended and disciplinary charges were filed against her, including allegations that she disobeyed a lawful order, failed to perform a lawful duty and knowingly made a false report. Found guilty, Gubitosi was dismissed from the force.

According to the decision, Chief Kapica had interviewed Gubitosi, who maintained -- both in the interview and in her written statement -- that she had strip searched the women. The disciplinary hearings were held between December 1994 and June 1995 under the Westchester County Police Act Sections 7 and 8 [Chapter 104 of the Laws of 1936, as amended]. Gubitosi was represented by an attorney but she did not testify.

Gubitosi sued, contending that her civil rights and her rights to free speech and due process had been violated by Chief Kapica, among others. She alleged that she was fired in retaliation for her criticisms of police practices.

Chief Kapica claimed he was entitled to qualified immunity because he lodged the charges against Gubitosi because of her insubordination and not because of her complaints regarding police practices, and that Gubitosi offered no affirmative evidence to counter the Chief?s assertion that he ?didn?t retaliate.? Although a federal District Court justice decided that Chief Kapica was not entitled to a qualified immunity with respect to Gubitosi?s free speech claims, this ruling was reversed by the U.S. Court of Appeals, 2nd Circuit.

While Gubitosi argued that the short period of time between the date she submitted her criticisms and the date she was served with disciplinary charges constituted evidence of retaliation, the Circuit panel said that ?it is simply impossible to miss the significant intervening events between these two dates, events corroborated by written statements and testimony given by fellow police officers and the three female detainees: plaintiff disobeyed the order to perform the strip searches, lied about it in the post-offense interview, and gave a false written statement about it.?

Finding that ?the total absence of evidence of retaliation offered by [Gubitosi] is fatal to her case,? the Court ruled that Chief Kapica was entitled to a qualified immunity with respect to Gubitosi?s First Amendment claims. According to the Court, ?[e]ven if we assume all the facts in the record ?that the trial judge [would have] concluded the jury might find in plaintiff?s favor ..., we conclude that [Gubitosi] has failed to identify affirmative evidence showing that Kapica retaliated against her for the exercise of her First Amendment rights. As a result, his qualified immunity defense is established as a matter of law.?

The full opinion is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/01/qualified-immunity-of-police-chief.html

Full post as published by New York Public Personnel Law on January 24, 2008 (boomark / email).