Troopers lawsuit dismissed


Troopers lawsuit dismissed

By Jennifer Harr, Herald-Standard

03/19/2008

A federal judge has granted a motion for summary judgment against a former state police sergeant who retired and claimed that his former employers targeted him after he raised concerns about a 2002 shooting investigation.

That means that the civil case brought by James Baranowski against Lt. Charles L. Depp and Capt. Roger N. Waters has been dismissed under the order entered Tuesday by U.S. District Judge Nora Barry Fischer.

The judge found that the case should be dismissed for two reasons: it was filed beyond the two-year statute of limitations and Baranowski’s concerns were part of his job duties, and not protected speech under the First Amendment of the Constitution.

Baranowski was on duty Dec. 24, 2002, when Michael Ellerbe, 12, was shot in Uniontown’s East End neighborhood. As the ranking officer at the barracks, he became the incident commander until a member of the crime unit arrived to take over the investigation.

While he initially believed the accounts of the shooting given by the troopers involved, Baranowski testified recently that as time went by, he became concerned that the physical evidence at the scene did not match up with statements taken from now-Cpl. Juan Curry and Trooper Samuel Nassan.

Baranowski testified earlier this month during a civil trial for a suit brought against Curry and Nassan by Ellerbe’s father, Michael Hickenbottom. During his testimony, Baranowski indicated he brought his concerns to Depp and Waters.

Depp is the commander of the Uniontown barracks, and Waters was the commander of the entire troop, which consists of barracks in Uniontown, Washington, Belle Vernon, Waynesburg and Pittsburgh.

In February 2003, Baranowski spoke to an FBI agent about the shooting. He acknowledged during the Ellerbe trial that he did not raise any of his concerns with the FBI or during a state police internal affairs investigation.

According to Fischer’s opinion in Baranowski’s lawsuit, after he spoke to the FBI, Baranowski alleged that Depp called him into his office to talk to him about the shooting. When he raised concerns to Depp, Baranowski alleged that Depp told him to mind his own business because he was not a part of the investigation.

Depp, according to the opinion, denied that conversation took place.

About one week after he spoke to Depp, Baranowski had alleged that he expressed similar concerns to Waters, who did not respond to him.

Between March 3, 2003, and March 11, 2003, Fischer indicated that Depp initiated six separate complaints against Baranowski, none of which had anything to do with the Ellerbe shooting. Waters sustained those complaints between June and October 2003.

In June 2003, Waters told Baranowski that his job was in jeopardy, Fischer indicated. Baranowski gave his notice of retirement in July 2003.

Baranowski filed notice of suit on May 23, 2005, in Fayette County Court, and filed the actual suit in federal court on Sept. 30, 2005 – more than two years after Baranowski’s retirement in July 2003 when the state of limitations started.

Fischer found that the two actions – one in state court and one in federal court – were separate actions, and that the notice of intent to sue, called a praecipe, did not toll the statute of limitations.

“As far as the court can tell, no further action was taken by Baranowski with respect to the proceedings in the Court of Common Pleas. The praecipe was apparently filed only for the purpose of tolling Pennsylvania’s two-year statute of limitations,” Fischer wrote.

The case was not transferred to federal court from Fayette County, Fischer noted. Instead the suit itself was filed in federal court on Sept. 30, 2005.

“What Baranowski essentially did was commence two separate actions against the defendants,” Fischer found.

She concluded that Pennsylvania law distinguishes between civil actions filed in county court and in federal court.

“This distinction has been recognized as a basis for holding that an action commenced in a Pennsylvania court does not toll the statute of limitations with respect to a subsequent action commenced in a federal court,” Fischer wrote.

Baranowski’s attorney, Timothy P. O’Brien, said that he disagrees with Fischer’s calculations on the tolling, and expressed disappointment on Baranowski’s behalf about the decision. O’Brien said the larger issue – also a part of Fischer’s opinion – are the ones related to Baranowski’s free speech rights.

“It should be of grave concern for all of us that when a police officer comes forward to report wrongdoing, his speech does not have the same protection afforded to other citizens under the First Amendment of the U.S. Constitution,” O’Brien said. “Because of the important constitutional issues involved, Mr. Baranowski is considering his options and may appeal Judge Fischer’s decision.”

In a 47-page opinion, Fisher cited case law that indicated Baranowski would only be entitled to have his speech protected if he spoke both as a citizen and about a matter of public concern. While she did not doubt the latter, Fischer found that Baranowski’s concerns were raised as a member of the state police.

Baranowski’s concerns related to the placement of the shell casings, and that there was no powder residue in areas where he expected it to be.

“This case, of course, does not turn on the precise circumstances of the Ellerbe shooting. Instead, it concerns only the nature of Baranowski’s speech, and the capacity in which he engaged in such speech,” Fischer wrote.

“Baranowski’s complaint affirmatively (states) that he complained to his superiors in his capacity as the incident commander (at the Ellerbe shooting scene),” Fischer wrote.

His suit was filed before a Supreme Court decision that precluded employees from suing if they were fired for speaking up – if the duty to speak up was a part of their job description. In this case, Fischer found that was the case.

“Baranowski’s caution in limiting his audience to those of higher or equal rank within the Pennsylvania State Police indicates that he was speaking as a police officer rather than as a citizen. Hence, the First Amendment’s Free Speech Clause did not protect him from employer discipline,” Fischer found.

Although she did not conclude that Baranowski’s free speech rights were violated, Fischer noted her in opinion that she did not want to trivialize how important it is for people to come forward and expose wrongdoing within a government agency.

“To say that the constitution does not protect a certain category of speech from discipline imposed by a public employer is not to say that such speech can enjoy no legal protection whatsoever,” Fischer wrote. “If the people of Pennsylvania wish to provide public employees with protection from employer discipline imposed in retaliation for comments of the kind allegedly uttered by Baranowski, they are free to do so by involving the normal legislative process.

“Whistleblower statutes can be used to fill the gap between the requirements of the constitution and the needs of a well-ordered society.”

An appeal of the decision would go before the 3rd Circuit Court of Appeals, the federal court’s appellate branch.

Jurors in the Ellerbe civil trial awarded Hickenbottom $28 million in damages against the troopers, who have been indemnified by the state. Attorneys for Curry and Nassan have said they will appeal the verdict.

Updated 03/18/2008 10:15:26 PM EDT

©The Herald Standard 2008

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