Petition for Writ of Certiorari — Knight v. City of New Orleans

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92-808

NO.

| GRACE OF THE CLERI

Jn the

Supreme Court of the United States

OCTOBER TERM, 1992

LORENZA HOLMES KNIGHT,

Petitioner,

VERSUS

CITY OF NEW ORLEANS AND

WARREN G. WOODFORK,

Respondents

PETITION OF LORENZA HOLMES KNIGHT

FOR WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

POINDEXTER & OXNER

DALE W. POINDEXTER *

Suite 102 - Executive Square

4480 General DeGaulle

New Orleans, Louisiana 70131

Telephone: (504) 392-9020

ATTORNEYS FOR PETITIONER

LORENZA HOLMES KNIGHT

*COUNSEL OF RECORD

2 IT ae hy aire.

QUESTIONS PRESENTED FOR REVIEW

(1) May a District Court grant Defendants’ Motions for

Summary Judgment on Appetlant’s claims by weighing the

evidence and making credibility determinations in a Sum-

mary Judgment Proceeding?

(2) Can the New Orleans Police Department violate

the criminal laws of the State of Louisiana and still be in

the “Ordinary Course of Business” under the Federal

Wiretapping Statute?

(3) Can a Pre-termination hearing officer be completely

biased and prejudge the merits of a case and does a Civil

Service employee have a right to a Fair pre-termination

hearing?

4) Does the absence of notice of the charges against a

Civil Service employee before termination deprive him of

Procedural Due Process?

DESIGNATED LIST OF ALL PARTIES

TO THE PROCEEDINGS IN THE COURT BELOW

(1) City of New Orleans

(2) Warren G. Woodfork

(3) Lorenza Holmes Knight

FABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW

DESIGNATED LIST OF ALL PARTIES TO THE

PROCEEDINGS IN THE COURT BELOW , il

TABLE OF CONTENTS a ll

TABLE OF AUTHORITIES vi

OPINIONS BELOW . | l

JURISDICTIONAL STATEMENT l

STATUTES INVOLVED RE abe een ae , 2

CONCISE STATEMENT OF THE CASE ree

oe ye ht ey” Oy). i rr

REASONS FOR GRANTING THE PETITION .... .6

1.) The Court below erroneously held that the District

Court could weigh the evidence and make credibility

determinations when considering a Summary

Judgment Motion. This holding is in direct conflict

with the holdings of this Court in Celotex Corp. |

Catrett, 477 U. S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986) and Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), of

the Eleventh Circuit in Bass v. City of Albany, 968 F.

2d 1067 (11th Cir. 1992), and of the Fifth Circuit in

Leonard v. Dixie Well Service, 828 F. 2d 291 (5th

Cir. 1987)

2.) The Court below erroneously held that a city police

department could have, as part of its “ordinary course

of business”, a policy of violating the laws of Louisiana

3.) The Court below erroneously held that a Civil

Service employee does not have a right to a “Fair”

pre-termination hearing. This holding is in direct

TABLE OF CONTENTS (continued)

conflict with the holdings of this Court in Hortonville

Joint School District No. 1 v. Hortonville Education

Assn., 426 U. S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1

(1976), Withrow v. Larkin, 421 U.S. 35 (1976), Taylor

v. Hayes, 418 U. S. 488 (1974), Mayberry v.

Pennsylvania, 400 U.S. 455 (1971), with the holdings

of the First Circuit in Acosta - Sepulveda v. Hernandez-

Purcell, 889 F. 2d 9 (1st Cir. 1989), the Fifth Circuit

in Dennis v. S & S Consolidated Rural High School

District, 577 F. 2d 338 (5th Cir. 1978) and Megill v.

Board of Regents, 541 F. 2d 1073 (5th Cir. 1976), the

Sixth Circuit in Kendall v. Board of Education of

Memphis City, 627 F. 2d 1 (6th Cir. 1980), the Ninth

Circuit in Brady v. Gebbie, 859 F. 2d 1543 (9th Cir.

1988), and the Eleventh Circuit in Bass v. City of

Albany, 968 F. 2d 1067 (11th Cir. 1992).

4.) The Court below erroneously held that a Civil

Service employee is not entitled to notice of the charges

against him before his termination. This holding

ignores the holdings of this Court in Brock v. Roadway

Express, Inc., 481 U.S. 252, 107 S. Ct. 1740, 95 L. Ed.

2¢ 239 (1987), Cleveland Bd. of Education v.

Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed.

2d 494 (1985), Goss v. Lopez, 419 U.S. 565, 95 S. Ct.

729, 42 L. Ed. 2d 725 (1975), In Re Ruffalo, 88 S. Ct.

1222 (1968) and Green v. McElroy, 360 U.S. 474, 79

S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). This holding is

also in direct conflict with binding precedent of the

Fifth Circuit in Glenn v. Newman, 614 F. 2d 467 (5th

Cir. 1980) and with the holdings of the Tenth Circuit

in Miller v. City of Misson, 705 F. 2d 368 (10th Cir.

1983) and the Eleventh Circuit in Bass v. City of

Albany, 968 F. 2d 1067 (11th Cir. 1992) and Everett

v. Napper, 833 F. 1507 (11th Cir. 1987).

TABLE OF CONTENTS (continued)

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX A- District Court’s Memorandum and

Order of July 2, 1991

APPENDIX B- District Court’s Memorandum

and Order of October 25. 1991

APPENDIX C- Per Curiam

APPENDIX D-_ Reilly Affidavit

APPENDIXE- Knight Affidavit

APPENDIXF- — Salles Affidavit

APPENDIX G Pertinent Statutory

Provisions of the Federal

Wiretapping Statute

APPENDIX H Pertinent Statutory

Provisions of the Louisiana

Wiretapping Statute

TABLE OF AUTHORITIES

PAGE

STATUTES

SUSL. RR 5G wes Bee eee 2

USS. 190. se eee eee 12

18 OU Bk. COLE GG as 6 eee eee 10

1S UB meee. ke eo ee eee 2

me O68, FM Sa Be ge eee ee eee 7

Linkin G@oBeee 6 6k 6 Gee eee 15

ise EGigel . 2s 5. 6 eee 2, 8, 20

JURISPRUDENCE

Brock v. Roadway Express, Inc... .......~.. iv, 17

481 U.S. 252, 107 S. Ct. 1749, 95 L. Ed. 2d 239 (1987)

Cefotes Corp. 0. CRO 4. 2G eee ili, 7, 20

477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)

Anderson v. Liberty Lobby Inc. ... 2... 0... ili, 7, 20

477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)

Cleveland Bd. of Education v. Loudermill . iv, 14, 15, 18

470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)

Carey v. PURRME © 6) odes a se eee 6

435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978)

Hortonville Joint School District No. 1 v.

Hortonville Education Assn. ............ iv, 10

426 U.S. 482, 96S. Ct. 2308, 49 L. Ed. 2d 1 (1976)

Matthews v. Eldridge ................ 13, 14

424 U.S. 319, 96S. Ct. 893, 47 L. Ed. 2d 18 (1976)

were 8. LOE sg ks Se eee iv, 11

421 U.S. 35 (1976)

1 eile

vii

TABLE OF AUTHORITIES (continued)

PAGE

Ree: ee a sk x eee back eee iv, 18

419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d. 725 (1975)

Wolff v. McDonnell . Ss ae Ga Re a RSS ei ee 14

418 U.S. 539, 94S. Ct. 2963, 41 L. Ed. 2d 935 (1974)

Cg rea rt earn merer eee: | Ar

41& U.S. 488 (1974)

Arnett v. Kennedy . . er ene See ed rh OSS

416 U.S. 134, 94S. Ct. 1633, 40 L. Ed. 2d 15 (1974)

Morton U. Muizg .. 6 ws eR a ete . 1b

415 U.S. 199, 94S. Ct. 1055, 39 L. Ed. 2d 270 (1974)

Mayberry v. Pennsylvania .... . aaa

400 U.S. 455 (1971)

In Re Ruffalo... . oe iv, 14

88 S. Ct. 1222 (1968)

Greene v. McElroy ae att are AB A a iv, 16, 17

360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959)

wervice vu. mee . ww ks oe eae 15

354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957)

In Re Murchison ........ PRN ee Cet a rt tore eee

349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955)

Bass v. City of Albany . . pe a) ore) beg eyes oe

968 F. 2d 1067 (11th Cir. 1992)

ee i oie as es ee se Oe ee el eee

859 F. 2d 1543 (9th Cir. 1988)

Leonard v. Dixie Well Service ....... hs ee

828 F. 2d 291 (5th Cir. 1987)

Washington v. Kirksey. ............ oi Gan

811 F. 2d 561 (11th Cir. 1987)

viii

TABLE OF AUTHORITIES (continued)

Beticer ©. City of Mitasion ... 2... 2. 66 bk ks

705 F. 2d 368 (10th Cir. 1983)

Watkins v. L. M. Berry & Co... .........

704 F. 2d 577 (11th Cir. 1983)

Vanelli v. Reynolds School ............

Dist. No. 7 669 F. 2d 773 (9th Cir. 1982)

Briggs v. American Air ..............

Filter Co. 630 F. 2d 414 (5th Cir. 1980)

Kendall v. Board of Education of Memphis City . .

627 F. 2d 1 (6th Cir.] 1980)

614 F. 2d 467-45th Cir. 1980)

611 F. 2d 387 (1st Cir. 1979)

Dennis v. S & S Consolidated

Rural High School District ............

577 F. 2d 338 (5th Cir. 1978)

Megill v. Board of Regents ............

541 F. 2d 1073 (5th Cir. 1976)

Pengueen vu. Tnomes .. . 2... te ee

430 F. 2d 852 (5th Cir. 1970)

State of Mo. Ex Rel. Gore v. Wochner...... .

475 F. Supp. 274 (E. D. Mo. 1979)

Buggs v. City of Minneapolis ...........

358 F. Supp. 1340 (D.C. Minn. 1973)

OTHER REFERENCES

iV,

Attorney General Opinion No. 89-301 2 ......... 9

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

LORENZA HOLMES KNIGHT,

Petitioner,

VERSUS

CITY OF NEW ORLEANS AND

WARREN G. WOODFORK,

Respondents

PETITION OF LORENZA HOLMES KNIGHT

FOR WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix C) is not

reported. The opinions of the district court are set forth in

Appendices A and B.

JURISDICTIONAL STATEMENT

Petitioner's Petition for Rehearing was denied by the

Court of Appeals on August 6, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254 (1).

STATUTES INVOLVED

This case involves the Federal Wiretapping Statute, 18

U.S.C. 2510, et seg., and the Louisiana Electronic

Surveillance Act, LSA/RS 15:1301, et seg. Due Process ques-

tions are also at issue.

Pertinent provisions of the Federal statute are set forth

in Appendix G, infra, and pertinent provisions of the

Louisiana statute are set forth in Appendix H, infra.

CONCISE STATEMENT OF THE CASE

Petitioner’s suit alleges violation of 78 USC 2510, et seq..,

unlawful discrimination on the basis of race in violation of

42 USC 2000 (e), et seq. and deprivation of rights under

the Fourteenth Amendment. The District Court granted

Summary Judgment in favor of Respondents on the claims

pursuant to 42 USC 2000 (e) and wiretapping (/8 U.S.C.

2510, et seq. and LSA/RS 15:1301, et. seq.) and ordered

Respondents to file a Motion for Summary on Petitioner's

remaining claims. Respondents did so and this motion was

granted by the District Court. Petitioner perfected

his appeal.

On the same day oral argument was held, the Panel

issued a per curiam affirming, in all respects, the holdings

of the District Court. Petitioner’s Petition for Rehearing

and for Rehearing En Banc were denied.

STATEMENT OF FACTS

Captain Lorenza Knight, a highly decorated twenty-

four year veteran of the New Orleans Police, was employed

pursuant to Civil Service Rules. On August 6, 1988, Knight

was paged by John Reilly who was working on the command

desk of the New Orleans Police. Knight returned the page

from a pay telephone. Officer Reilly reported a problem

with another police officer (Cathy Carter) who had refused

to obey a direct order. In the telephone conversation with

Reilly (a long-time friend), Knight made some allegedly

derogatory statements reflecting upon the race of the police

officer in question. This conversation was taped without

At the same time, Reilly had a similar conversation

with Captain James Howley regarding the same incident,

and during which conversation Howley used similar

language. Reilly had Knight on one telephone line and

Howley on another line. This conversation was also taped

When Reilly asked, Knight told Reilly to write up a

complaint form (DM-1) regarding Carter's actions and send

the form to her immediate superior for investigation. Since

Howley had already ordered Reilly to take that action

Knight told Reilly that no action would be taken on his

part. Reilly completed a DM-1 and signed Howley’s name

The Police Department, prior to this incident, had issued

nothing in writing to te ts employees that the telephones

at the Command Desk were taped. This was done by a

recording dev Ce ¢ é area KnowWMN Aas the

radio shack’. ¢ the command

1@SK are taped nitied | beeping noise audible

tne partie é which Knight's

versal mn Was Lape t eeped K1 ont ad worked

e : pe} 1 of time

ne ; elepil e syvsten

. ywicts 1QS8

Knight did not instigate, nor did he take any part in, an

investigation of Carter’s actions done by Sergeant Howard,

the President of the Black Organization of Police. Despite

a clear and flagrant violation of departmental procedures

and disobeyance of a direct order from a superior officer,

no disciplinary action was taken against Carter.

Howard went to the Communication Center and made

several copies of the Knight/Reilly taped conversation.

Howard played copies of the tape at meetings of the Black

Organization of Police and at the home of Sergeant Israei

Fields, another member of the BOP.

Howard then played the tape to Woodfork and left one

copy of the tape with him. Woodfork, an admitted admirer

of Minister Louis Farrakhan, then referred the matter to

Major Salles of the Internal Affairs Division (IAD), had

Howard deliver a copy of the tape to that office and ordered

Salles to perform an investigation and take a recorded state-

ment from Knight.

Because the tape delivered by Howard was partially

inaudible, Salles ordered Sergeant Labry to go to the

Communications Center and obtain a copy of the Knight

taped conversation. While listening to the tape made by

Labry, Salles discovered the recorded conversation between

Reilly and Howley. Salles initiated an investigation into

Howley’s conduct.

Subsequently, Salles ordered Knight to give a statement.

The Operations Manual of the Police Department (ASOP

6.0 D) required Knight to give a statement, cooperate in

any investigation and to sign any written statement. On

September 6, Knight went to Salles’ office as ordered and

demanded that Salles advise him of the nature of the

charges against him. Salles refused to do so. However, when

Howley was required to give a recorded statement, Salles

advised Howley of the nature of the charges against him

Disciplinary action was taken against Knight, based

partially upon this recorded statement.

On September 13, Knight wrote a letter to Woodfork

requesting copies of the evidence against him, the identity

of his accusers and other information that he felt he needed

to defend himself. Woodfork, on September 14, refused to

provide Knight with any documents other than a copy of

Knight’s written and recorded statements. Woodfork stated

that “the other items you have requested are

considered evidence in this investigation and, as such, will

only be released under the order of subpoena”. There is no

subpoena power in a disciplinary proceeding before

Superintendent Woodfork!

In this same letter, Woodfork advised Knight that he

was being investigated on certain charges. By the time of

this letter, Woodfork had already made up his mind that

Knight was guilty.

Woodfork wrote Knight on October 20, requiring him to

appear for a disciplinary hearing and formally advising

him of the charges against him. Before the hearing on

November 11, Woodfork consulted with the City Attorneys

regarding charges of Discrimination that could be brought

against Knight. He did not advise Knight of any claim of

Discrimination.

On November 14, a black newspaper, The Louisiana

Weekly, published a lengthy article that quotes verbatim

from the Knight/Reilly telephone conversation, quotes

“Sources” at the Police Department and quotes a Press

Release by Woodfork. The Louisiana Weekly got this

information and knew about the disciplinary action before

Knight did.

On November 15, Woodfork involuntarily retired

Knight, finding that Knignt had made a public statement,

was guilty of racial discrimination, and had failed to

maintain the standards of service. The charges originally

made against Knight were different from those for which

he was disciplined. Woodfork admits that only after the

hearing before him was a determination made that other

charges would be made against Knight.

Howley’s recorded conversation was found by Woodfork

not to be a public statement. Howley was found to have

been “indirectly discourteous”, but he had not failed to

maintain the standards of service although his statement

was almost identical to Knight’s.

REASONS FOR GRANTING THE PETITION

1. A DISTRICT COURT MAY NOT WEIGH THE

EVIDENCE AND MAKE CREDIBILITY DETERMI-

NATIONS ON MOTION FOR SUMMARY JUDG-

MENT.

To reach its decision the District Court had to

review all the evidence, determine what had been told and

furnished to Knight, weigh the evidence, make credibility

determinations and determine all the facts.

In dealing with Knight’s “Liberty Interest” claim

(Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed.

2d 252 (1978) ), the District Court decided that the state-

ments made about Knight were true. This ignored the fact

that the disputed statements were not whether Knight said

something, but whether or not Knight had been guilty of

discrimination.

The District Court’s holding that the wiretapping was

made “in the ordinary course of business” and that Knight

had impliedly consented could only have been based upon

affidavits furnished by Appellees. The court stated:

Captain Knight, who previously worked in the

Communications Division and, at the time of his

retirement, clearly must have known that the police

department recorded telephone calls placed to the

communications desk. Fn. 3.

Knight’s and Reilly’s affidavits state that they did not

know, nor did they consent, to the tapping. Weighing the

evidence and making credibility determinations was

admitted to by the District Court in footnote 3 of its

decision.

The District Court candidly stated the “allegations of

plaintiff concerning the lack of knowledge and consent to

the taping’, does not “refute the evidence”. This is a

credibility determination and weighing of evidence not

within the power of a District Judge. This is a determination

for a jury. See, Celotex Corp. v. Catrett, 106 S. Ct. 2548, 477

U.S. 317, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby,

Inc. 1068S. Ct. 2505 477 U.S. 242, 91 L. Ed. 2d 202 (1986).

Leonard v. Dixie Well Service, 828 F. 2d 291, 294 (5th Cir.

1987) held:

The district judge erred in basing his decision on

finding Dixie Well’s documentary evidence inherently

more “reliable” or “accurate” than Leonard’s and his

co-workers’ testimony and sworn statements from

memory. The party opposing a motion for summary

judgment, with evidence competent under Rule 56, is

to be believed; it is for the jury at trial, not for the

judge on a pretrial motion, to decide whose evidence

is more credible. A judge assessing the “persuasive-

ness” of evidence presented on a motion for summary

judgment may discount such evidence as unspecific or

immaterial, but not as unbelievable.

To have reached its result, the District Court must not

have believed the evidence presented by Petitioner.

Summary Judgment was not appropriate.

2. A CITY POLICE DEPARTMENT'S VIOLATION

OF STATE LAW CANNOT BE A PART OF ITS

“ORDINARY COURSE OF BUSINESS”.

The District Court held that the wiretapping was legal

since it was done in the “ordinary course of business’.

The phrase “in the ordinary course of business”

cannot be expanded to mean anything that interests

a company. Such a broad reading flouts the words of

the Statute and establishes an exemption that is with-

out basis in the Legislative history of Title 3. Watkins

us. L. M. Berry & Company, 704 F. 2d 577, 582 (11th

Cir. 1983).

In Briggs vs. American Alr Filter Co., Inc. 630 F. 2d 414

(5th Cir. 1980) at 418, we find:

If the common experience in this country is that

under certain circumstances, communications made

on office telephones are not listened to by employers

or their agents, it cannot be said that an act of “listen-

ing in” to such a conversation is “in the ordinary course

of business”.

Louisiana law determines whether or not the New

Orleans Police Department could have tapped the line “in

the ordinary course of business”. LSA/RS 15:1301 et seq.,

does not provide for an “ordinary course of business” excep-

tion as all police departments, except the state police, are

forbidden from engaging in wiretapping.

ss)

While no Louisiana Appellate Court has interpreted this

statute, the Louisiana Attorney General has issued an

Opinion regarding the legality of the Kenner police depart-

ment’s tapping lines. Attorney General Opinion No. 89-301

states five conditions that must be met:

1) All employees must expressly consent tc the

monitoring;

2) Adequate notice must be placed in the room;

3) The monitoring must be indiscriminately applied,

routinely performed and must not be surreptitious;

4) The monitoring must serve legitimate purposes, in-

cluding but not limited to improving the operations of

the department’s emergency and investigative services

and furthering the administration of criminal justice;

and

5) The department should also provide phone lines to

employees and others on which personal calls may be

made without monitoring of any kind.

Briggs, supra, holds that for wiretapping to be legal

under the Federal statute (1) the call must be about

business, (2) the listening-in must be limited in purpose

and time; and (3) the listening-in must not be a part of a

general practice of surreptitious monitoring.

Here, the listening-in does not meet the second and third

requirements of Briggs. If it met the third requirement of

Briggs, it would fail the “indiscriminately applied,

routinely performed” provisions of the third requirement

of the Louisiana law. Thus, the wiretap involved here can

not be “in the ordinary course of business” under either

Louisiana or Federal law.

The District Court found that Knight had impliedly

given his consent. Watkins, supra, rejected the argument

that the employee's knowledge of the employer's

CAPABILITY of monitoring her private conversations was

implied consent to the monitoring under federal statutory

law.

In Campitit vs. Walonis, 611 F. 2d 387 (1st Cir. 1979),

state law prohibited taping of Campiti’s conversation.

Defendants also argued “implied consent”. The First Circuit

stated, at 393, “this boils down to the proposition that

Campiti should have known his call would probably be

monitored and he, therefore, gave consent”. There was no

consent because “implied” consent would completely distort

the plain words of 18 USC 2511 (2) (c).

3. ACIVIL SERVICE EMPLOYEE HAS A RIGHT TO

A “FAIR” PRE-TERMINATION HEARING.

The District Court held that:

Knight, however was not entitled to have his

pre-termination hearing conducted by a fair and

impartial decision maker.

A public employee facing a due process hearing on

charges is entitled to an impartial decisionmaker; not a

decisionmaker who admits that he was personally offended

and decided that the employee was guilty before his hearing

as Woodfork admits he did. See, e.g., Hortonville Joint

School District No. 1 v. Hortonville Education Assn., 426

U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976); Taylor v.

Hayes, 418 U.S. 488 (1974): Mayberry v. Pennsylvania, 400

U.S. 455 (1971); Kendall v. Board of Education of Memphis

City, 627 F. 2d 1 (6th Cir. 1980). An impartial decision-

maker isa basic constituent of minimum due process. Megi//

v. Board of Regents, 541 F. 2d 1073 (5th Cir. 1976); Ferguson

uv. Thomas, 436 F. 2d 852 (5th Cir. 1970). Fundamental to

| the requirements of due process is the opportunity to be

heard before a fair and impartial tribunal of some nature,

| composed of neutral and detached persons. See e.g., Jn Re

Murchison, 349 U. S. 133, 75 S. Ct. 623, 99 L. Ed. 942

(1955). A biased decisionmaker is constitutionally unac-

ceptable. Withrow v. Larkin, 421 U.S. 35 (1976).

| Where termination of an employee is based on

| allegations of misconduct, due process requires that there

be notice of the charges, a hearing on the merits before an

| impartial person or body, a chance to be represented and

confronted with witnesses, and a decision based on some

substantial evidence. Buggs v. City of Minneapolis, 358 F.

Supp. 1340 (D. C. Minn. 1973). See also Dennis v.S & S

Consolidated Rural High School District, 577 F. 2d 338 (5th

Cir. 1978). and State of Mo. Ex Rel. Gore v. Wochner, 475

F. Supp. 274 (EF. D. Mo. 1979).

In Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988), the

Ninth Circuit dealt with a case very similar for its lack of

an impartial hearing. Dr. Brady, a state medical examiner,

was accused of selling body parts to finance parties in the

morgue. Brady then told his supervisor, Gebbie, that he

had a bank account which he had started while a county

| coroner. The unsolicited funds for the account came primar-

| ily from small amounts of money forwarded to the coroner’s

office by the National Pituitary Foundation. The funds were

used for various amenities for the Medical Examiner’s

Office. Gebbie refused Brady’s offer to resign at that time,

but agreed to meet with him after she met with the State

Attorney General.

Gebbie met with Brady later and again refused his offer

to resign. She then gave him a letter of suspension and

informed him that he was suspended without pay pending

an investigation into charges of misuse of public funds.

ELL

Gebbie also issued a press release in which she stated

derogatory information

After the suspension, Brady was the subject of extensive

and unfavorable press coverage. The Attorney General

later issued a report which concluded that criminal

sanctions against Brady were not warranted. Brady and

his attorneys then met with Gebbie. After Brady refused

to resign, Gebbie handed him a letter of proposed termina-

tion charging him with violating various state and

departmental policies and accounting procedures. The

letter also stated that on October 2, 1985, Brady would

have the opportunity to come to Gebbie’s office with his

attorney to respond to the charges, and present mitigating

or rebuttal information. Gebbie then issued a press release

about the proposed termination.

The meeting was held and, at that time, Gebbie asked

Brady for specific information regarding whether he had

used particular state-owned equipment when he performed

private autopsies. Brady stated that in order to answer her

questions he needed time to check his records. He asked

for a continuance to gather the necessary information to

outline his response to the charges. Gebbie denied the

request. She also denied Brady’s request for a fair and public

hearing. The next day Gebbie discharged Brady. Gebbie

also issued a press release in which she made further

derogatory statements about Brady.

Brady subsequently filed suit in the United States

District Court for the District of Oregon, pursuant to 42

U.S.C. 1983, for monetary damages and reinstatement al-

leging a lack of due process.

The Ninth Circuit noted that the fundamental require-

ment of due process is an opportunity to be heard at a

meaningful time and in a meaningful manner (Matthews v.

Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed.

2d 18 (1976) ) and that, at a minimum, due process requires

notice and a hearing where the individual has a meaningful

opportunity to confront the evidence against him. Vanelli

v. Reynolds School Dist. No. 7,669 F. 2d 773 (9th Cir. 1982).

The Ninth Circuit had no difficulty in affirming the

jury finding as there was sufficient evidence presented in

the case from which a jury could reasonably find that Gebbie

did not give Brady even minimal due process, i.e. an

opportunity to be heard in a meaningful manner or an

opportunity to clear his name when it stated, at page 1555:

A jury could reasonably infer that even if the Oc-

tober 2, 1985 meeting constituted a “hearing”, it did

not comport with due process.

A jury could infer from this that the “hearing” was

a mere formality and that Gebbie did not give Brady

a ‘ineaningful opportunity” to clear his name or be

heard. See Matthews, 819 F. 2d at 893-94: *** “|dJue

process of law [is not present] where the state has gone

through the mechanics of providing a hearing, but the

hearing is totally devoid of a meaningful opportunity

to be heard”) (quoting Washington v. Kirksev, 811 F.

2d 561, 564 (11th Cir. 1987) ).

Knight’s hearing was nothing more than a farce

designed to fulfill the pretext that a due process hearing was

given. Woodfork admitted in his deposition he had already

made up his mind that Knight was guilty before Knight's

hearing was held. Woodfork refused to give Knight any of

the evidence that was to be used against him, except the

Knight statement to IAD.

4. A CIVIL SERVICE EMPLOYEE IS ENTITLED TO

NOTICE OF THE CHARGES AGAINST HIM BEFORE

HIS TERMINATION.

Before a “tenured public employee” is discharged, he is

entitled to oral or written notice of the charges against

him, an explanation of the employer's evidence, and an

opportunity to present his side of the story. Cleveland Bd

of Education v. Loudermill, 470 U.S. at 546, 105 S. Ct.

1487, 84 L. Ed. 2d 494 (1985). The fundamental require-

ment of due process is an opportunity to be heard at a

meaningful time and in a meaningful manner. Matthews,

supra. Due process requires that a person receive notice of

charges brought against him so that he may understand

why he is being investigated and have an opportunity to

prepare aresponse. Wolff vu. McDonnell, 418 U.S. 539, 94

S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

In /n Re Ruffalo, 88S. Ct. 1222 (1968), an attorney was

charged in state court disciplinary proceedings with two

counts of soliciting FELA plaintiffs as clients through an

agent, Mr. Orlando. At the hearing, both Orlando and

Ruffalo testified that Orlando did not solicit clients for

Ruffalo but merely investigated FELA cases for him.

The charges were amended, during the hearing, based

on Ruffalo’s hiring Orlando to investigate Orlando’s own

employer, a railroad. Ruffalo was subsequently disbarred

based upon a charge that was not among the original

charges. As this Honorable Court noted at page 1226:

The charges must be known before the proceedings

commence. They become a trap when, after they are

underway, the charges are amended on the basis of

testimony of the accused. He can then be given no

opportunity to expunge the earlier statements and

start afresh.

This absence of fair notice as to the reach of the

grievance procedure and the precise nature of the

charges deprived petitioner of procedural due process.

(emphasis added)

Knight had no knowledge of the charge of Discrimina-

tion until after his hearing. He had no opportunity to defend

himself. He was deprived of Due Process. It was that very

deprivation of Due Process that allowed Woodfork to obtain

the most important evidence used by him to make his deci-

sion.

The Operations Manual of the New Orleans Police

Department and LSA/RS 40:2531, et. seq., provide that the

officer shall be advised of the nature of the charges against

him at the beginning of the interrogation. When a gov-

ernmental body adopts procedures relating to such interests

as employment, it is obliged under federal law to comply

with these procedures. Service v. Dulles, 354 U.S. 363, 77

S. Ct. 1152, 1 L. Ed. 2d 1403 (1957). Where the rights of

individuals are affected, it is incumbent upon agencies to

follow their own procedures. Morton v. Ruiz, 415 U.S. 199,

94S. Ct. 1055, 39 L. Ed. 2d 270 (1974).

Providing post-deprivation remedies are not sufficient.

In Loudermill, supra, this Court announced an important

principle of law at 470 U.S. 545-546:

The tenured public employee is entitled to oral or

written notice of the charges against him, an explana-

tion of the employer’s evidence, and an opportunity to

present his side of the story.

in Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3

L. Ed. 2d 1377 (1959), Greene was discharged from his

employment solely as a consequence of the revocation of a

security clearance. Prior to a post-termination hearing,

Greene received a letter informing him that the action was

based on certain information. When he appeared at the

hearing, he was questioned in detail concerning his back-

ground and the information disclosed in the termination

letter.

At this hearing, and subsequent ones before other

hearing boards, the Government used “confidential inves-

tigations” that were compilations of statements taken by

an investigatory agency and various other “evidence” that

was refused to Greene. Greene had no opportunity to con-

front and question persons whose statements reflected

adversely on him or to confront the government inves-

tigators who took their statements.

Greene was subjected to an intense examination during

hearings, and during his examination at the final hearing,

this hearing board injected new subjects of inquiry and

make it evident that it was relying on “evidence” not made

available to Greene.

Almost three years after his termination, Greene

received a letter from the Government that stated that

doubts concerning Greene’s credibility affected the Board’s

eval: .*ion of his trustworthiness and that only trustworthy

persons could be afforded access to classified information.

This was the first time Greene was charged or found to be

untrustworthy.

As this Court noted, at pg. 496:

Certain principles have remained relatively

immutable in our jurisprudence. One of these is that

where governmental action seriously injures an indi-

vidual, and ¢he reasonableness of the action depends

on fact findings, the evidence used to prove the

Government’s case must be disclosed to the individual

so that he has an opportunity to show that it is untrue.

While this is important in the case of documentary

evidence, it is even more important where the evidence

consists of the testimony of individuals whose memory

might be faulty or who, in fact, might be perjurers or

persons motivated by malice, vindictiveness, intoler-

ance, prejudice, or jealousy.

Woodfork refused to give Knight any evidence except

the statement he gave to Salles. As in Greene, supra, this

case is one of a fact determination rendered after a hearing

which failed to comport with traditional ideas of fair proce-

dure.

In Brock v. Roadway Express, Inc., 481 U.S. 252, 107

S. Ct. 1740, 95 L. Ed. 2d 239 (1987), Roadway discharged

one of its drivers alleging that he had disabled several

lights on his assigned truck in order to obtain extra pay

while waiting for repairs. The driver filed a complaint with

the Department of Labor claiming he was discharged as a

“whistleblower” in violation of a Federal statute. OSHA

notified Roadway of the grievance and an OSHA field inves-

tigator obtained statements substantiating the driver's re-

taliatory discharge claim. Roadway was afforded an oppor-

tunity to meet with the investigator and submit a written

statement detailing the basis for the driver’s discharge, but

it was not provided with the names of the other witnesses

or the substance of their statements. Subsequently, the

Secretary of Labor ordered the driver reinstated with back

pay. Roadway then filed suit claiming that the Secretary

unconstitutionally deprived Roadway of procedural due

process by failing to provide Roadway with the substance

of the evidence supporting the driver’s complaint.

This Court held, at page 264:

We conclude that minimum due process for the em-

ployer in this context requires notice of the employee's

allegations, notice of the substance of the relevant sup-

porting evidence, an opportunity to submit a written

response, and an opportunity to meet the investigator

and present statements from rebuttal witnesses.

Citing Loudermill, supra, and Arnett v. Kennedy, 416

U. S. 1384, 94 S. Ct. 1633, 40 L. Ed 2d 725 (1974), this

Honorable Court stated:

These cases reflect that the constitutional require-

ment of a meaningful opportunity to respond before a

temporary deprivation may take effect entails, at a

minimum, the right to be informed not only of the

nature of the charges but also of the substance of the

relevant supporting evidence.

Woodfork refused to provide Knight with any informa-

tion or documents except the statement Knight gave to IAD.

Even high school students faced with suspensions of less

than ten days are entitled to more Due Process than was

given Knight. In Goss v. Lopez, 419 U. S. 565, 95 S. Ct.

729, 42 L. Ed. 2d 725 (1975), several students were sus-

pended for various infractions. This Court held, at page 581:

Students facing temporary suspension have

interests qualifying for protection of the Due Process

Clause, and due process requires, in connection with

a suspension of 10 days or less, that the student be

—SSESe___aaaaaa ee

given oral or written notice of the charges against him

and, if he denies them, an explanation of the evidence

the authorities have and an opportunity to present his

side of the story.

This Court went on to hold, at page 582:

We hold only that, in being given an opportunity

to explain his version of the facts at this discussion,

the student first be told what he is accused of doing

and what the basis of the accusation is.

The Eleventh Circuit has recently had an occasion to

consider a case involving another police officer that is, in

many respects, identical to the facts in this case. In Bass

v. City of Albany, 968 F. 2d 1067 (11th Cir. 1992), Officer

Bass was suspended without pay after an arrested suspect

alleged that Bass had used excessive force in making the

arrest. The Internal Affairs Department of the Albany

Police had notified Bass of its investigation and interviewed

him to get his version of the events. The police chief called

a meeting with Bass in order to give Bass a second chance

to tell his side of the story. Bass was then suspended without

pay pending a pretermination hearing on charges of violat-

ing a departmental policy which proscribed the use of exces-

sive force.

At his pretermination hearing Bass was given another

opportunity to present his side of the story. Afterwards, the

city manager terminated Bass upon finding a violation of

the policy against excessive force but, additionally, citing

other factors as reasons for the termination including

numerous violations of city policies and procedures concern-

ing filing of reports, use of firearms and the conduct of high

speed chases. Bass was not notified of these charges until

he was terminated.

The District Court dismissed Bass’ due process claim

upon Motion for Summary Judgment. The Eleventh Circuit

reversed, citing Miller v. City of Mission, 705 F. 2d 368

(10th Cir. 1983), because the termination was partially

based on reasons not included in the notice to Bass. The

Eleventh Circuit held that there was an absence of Due

Process.

Despite the fact that Knight was never told, before being

found guilty, that he was charged with Discrimination, the

District Court and the Fifth Circuit were of the opinion

that there was no Due Process violation. This is clearly not

in accordance with the law as pronounced by this Honorable

Court and the other Circuit Courts of Appeal. This holding

is further in conflict with binding precedent of the Fifth

Circuit in Glenn v. Newman, 614 F. 2d 467 (5th Cir. 1980).

CONCLUSION

This Court should grant this Petition for a Writ of

Certiorari and reverse the lower court holdings. Granting

Summary Judgment in this case flies in the face of Ander-

son and Catrett. Since the violation of the criminal laws of

Louisiana (LSA/RS 15:1301, et seq.) can not be “in the

ordinary course of business” of the New Orleans Police

Department, holding this wiretapping to be legal may be

construed as a sanctioning of illegal acts and is an overrul-

ing of Briggs by a Panel of the Fifth Circuit. This holding

is in conflict with the holding of the Eleventh Circuit in

Watkins and the First Circuit’s holding in Campiti.

Further, allowing this holding to stand means that a

Civil Service employee has no complaint if his pre-termina-

tion hearing officer is so biased and prejudiced as to be

incapable of providing a fair hearing.

Finally, the holdings below mean that the employee is

not entitled to know the charges against him before he is

terminated. These holdings eviscerate Due Process as pro-

nounced in numerous cases by this Honorable Court and

the other Circuit Courts of Appeai.

Respectfully submitted,

POINDEXTER & OXNER

DALE W. POINDEXTER

Bar No. 10559

Suite 102, Executive Square

4480 General DeGaulle

New Orleans, LA 70131

(504) 392-9020

ATTORNEYS FOR PETITIONER,

LORENZA HOLMES KNIGHT

CERTIFICATE OF SERVICE

I hereby certify that I have on this 30th day of October,

1992, served three copies of the foregoing petition upon the

following, by placing same in the United States mail, prop-

erly addressed and first class postage prepaid:

(]) Counsel for Defendants,

City of New Orleans and

Warren G. Woodfork

Mr. Jay Alan Ginsberg

Assistant City Attorney

City of New Orleans

Law Department

1300 Perdido Street

Room 5E01

New Orleans, Louisiana 70112

DALE W. POINDEXTER

A-]

APPENDIX A

UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF LOUISIANA

LORENZA KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS and SECTION “K" (1)

WARREN G. WOODFORK

MEMORANDUM AND ORDER

Defendants, the City of New Orleans (the “City”) and

Superintendent of Police Warren G. Woodfork (“Wood-

fork”), filed a motion to dismiss the claims of plaintiff made

pursuant to title 42, United States Code, Section 2000 ‘e)

(Doc. 38). Further, in response to a motion for partial sum-

mary judgment filed by plaintiff (Doc. 60), the defendants

also filed a cross -motion for partial summary judgment

(Doc. 67), seeking judgment as a matter of law on plaintiff's

federal wiretapping statute claims. The Court also raises

sua sponte plaintiffs claims under the Fourteenth Amend-

ment to the U.S. Constitution and Title 42, United States

code, Section 1983. Having reviewed the memoranda in

support, the oppositions, the records, and the applicable

law, the Court finds the motions filed by defendants to have

merit but further briefing to be necessary with respect to

plaintiffs remaining claims.

BACKGROUND

This action arises out of the involuntary retirement of

plaintiff Lorenza Knight (“Knight”) on November 15, 1988,

A-2

from the New Orleans Police Department. Plaintiffs in-

voluntary retirement allegedly took place as a result of

derogatory statements made concerning another police of-

ficer’s race, which were recorded by the police department’s

telephone monitoring system. Because of the issues in-

volved in these motions, the Court finds it useful to provide

a thorough factual and procedural history of this case.

The record indicates that plaintiff worked continuously

as a police officer from 1964 until November 1988, except

for a short break of three months in 1966 when he worked

for a private sector company. During his tenure with the

New Orleans Police Department, plaintiff served in a

variety of positions and, at the time of his involuntary

retirement, had reached the rank of captain. One such pos-

ition in 1977 included being a platoon commander of the

police department’s Communications Division. According

to plaintiffs deposition testimony, this division had the

responsibility of acting as an information center, receiving

calls, and dealing with the media. Plaintiff testified in his

deposition that he did not know whether the police

department taped routine phone calls, but he did know that

the Communications Division taped radio transmissions.

The specific incident that gave rise to this cause of action

occurred on August 6, 1988. As a police captain, plaintiff

worked as a field supervisor and acting superintendent in

the absence of the police superintendent, Warren G.

Woodfork.

Upon receiving a page on his beeper, plaintiff called

Officer John Reilly at the Command Desk of the police

department’s Communications Division. Captain Knight

apparently placed this call from a public telephone booth

at approximately 11:30 p.m. on August 6th.

A-3

The transcript of the call between Officer Reilly and

Captain Knight indicates a conversation about the conduct

of another police officer. During this conversation, the fol-

lowing exchange took place after plaintiff asked about the

other officer’s race:

Knight: Black?

Reilly: Yes. She’s not usually like that...

Knight: They are usually like that John, it’s a fucking

nigger.

Reilly: Uh huh...

Knight: It’s a shame to say it but a fucking nigger is a

nigger and ain't worth a shit, you know.

Knight: | want paper work typed up on it explaining in

detail exactly what she did and we'll send it down to the

district in the form of a complaint.

Reilly: Okay.

Knight: The bitch is not going to get away with this

kind of stuff, you know, I don't give .. . I'm tired of these

fucking niggers.

The police department contends that it routinely

monitors the telephone lines to the Command Desk and,

thus, the remarks made by Captain Knight were recorded.

An internal investigation of the other officer's conduct

A-4

on the night of August 6, 1988, resulted in the investigating

officer reviewing the taped communications surrounding

that event. The investigating officer turned a cassette tape

of this conversation over to his supervisor, which resulted —

in disciplinary charges being brought against plaintiff

under several police regulations. The record indicates that

Superintendent Woodfork provided notice to plaintiff of the

disciplinary charges against him and held a hearing on

November 7, 1988, for plaintiff to respond to these charges.

Subsequently. in a letter dated November 15, 1988,

Superintendent Woodfork involuntarily retired plaintiff

from the police department, which took effect on that date.

Plaintiff appealed the superintendent's decision to the

New Orleans Civil Service Commission (the “Civil Service

Commission”! on November 17, 1988. In his initial petition

to appeal, Captain Knight does not make any allegations

of discrimination stemming from the personnel action

against him. On February 13, 1989, plaintiff, however.

amended his petition to appeal and included a charge of

racial discrimination. The Civil Service Proceedings

apparently have been continued pendinga resolution of

state court proceedings.

Captain Knight filed suit in the Civil District Court for

the Parish of Orleans, State of Louisiana, on November 18,

1988. In his initial petition, plaintiff sought a temporary

restraining order to prevent certain actions by the

defendants in that matter with respect to the tapes of his

conversation above. On February 28, 1989, plaintiff filed

an amended petition in the state court action, seeking dam-

aged in excess of $600,000.00, making other claims to in-

clude invasion of right to privacy and intentional infliction

of emotional distress.

The Equal Employment Opportunity Commission (the

A-5

“EEOC”) also received a complaint from plaintiff on July

28, 1989. On August 10, 1989, the EEOC issued a right to

sue letter to plaintiff. In this letter, the EEOC notes that

it has dismissed plaintiffs complaint because of its

untimely filing.

Plaintiff filed the complaint in the instant action on

August 2, 1990 Inthe complaint, he alleges causes of action

under Title 18, United States Code, Section 2520, the

federal wiretapping statute. On August 30, 1990, plaintiff

amended his complaint to include a claim under Title 42,

United States Code, Section 2000e, which prohibits

unlawful discrimination based upon race. Finally, plaintiff

filed a Second Amended Complaint on November 9, 1988,

and alleged causes of action under the Fourteenth

Amendment to the U. S. Constitution and Title 42, United

States Code, Section 1983. The Court now turns to the

merits of the motions before it and plaintiffs other claims

against the defendants.

A-6

DISCUSSION

1. Plaintiffs Racial Discrimination Claims

Defendants first contend that this Court lacks subject

matter jurisdiction because plaintiff failed to timely file his

complaint with the EEOC. In opposition, plaintiff argues

that the proceedings before the New Orleans Civil Service

Commission worked to equitably toll the time for filing.

The Court, however, finds that the law does not support

plaintiff's argument of equitable tolling. |

The U. S. Supreme court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), established the following

two jurisdictional requirements for filing a suit based on

racial discrimination: (1) the complainant must timely file

charges of discrimination with the EEOC, and (2) the

complainant must receive and act upon the EEOC’s right

to sue notice. Id. at 798. In the instant suit, defendants

contend that plaintiff failed to satisfy the first requirement

above.

IThe Court does not reach the merits of plaintiffs

discrimination claim in this decision but finds it necessary

to comment briefly on such claim. In essence, plaintiff

alleges that; because Superintendent Woodfork chose to

involuntarily retire him as a result of racially-prejudiced

comments, the defendants should be held liable for discrimi-

nation. The Court, even upon a cursory examination of the

facts in this case, notes that the action taken by Superinten-

dent Woodfork probably would be supported by the evidence

at a trial. While the superintendent’s decision may have

been harsh, the comments made by Captain Knight about

another police officer, considering his position of responsi-

bility within the police department, provided ample cause

for Superintendent Woodfork’s decision.

A-7

The federal enforcement provisions for charges of racial

discrimination by an employer pursuant to Title VII may

be found in Title 42, United States Code, Section 2000e-5.

The relevant portion of this statute provides:

A charge under this section shall be filed within

one hundred and eighty days after the alleged unlawful

employment practice occurred and notice of the charge

(including the date, place and circumstances of the

alleged unlawful employment practice) shall be served

upon the person against whom such charge is made

within ten days thereafter, except in a case of an

unlawful employment practice with respect to which

the person aggrieved has initially instituted proceed-

ings with a State or local agency with authority to

grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon

receiving notice thereof, such charge shall be filed by

or on behalf of the person aggrieved within three

hundred days after the alleged unlawful employment

practice, occurred, or within thirty days after receiving

notice that the State or local agency has terminated

the proceedings under the State or local law, whichever

‘s earlier, and a copy of such charge shall be filed by

the Commission with the State or local agency.

42 U.S.C. 2000e-5(e). In the instant action, defendants

claim that plaintiff should have filed his claim with the

EEOC prior to 180 days from November 15, 1988. Plaintiff,

however, argues in opposition that he should be permitted

the 300-day filing period because he initially filed charges

with the New Orleans Civil Service Commission and such

filing subjects the timeliness to equitable tolling.

The Court first notes that, under the relevant case law.

the statutory time period for filing a discrimination claim

A-8

with the EEOC constitutes a statute of limitations defense

rather than a jurisdictional one. Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982); see Coke v. General

Adjustment Bureau, Inc., 640 F. 2nd 584, 594, (5th Cir.,

Mar. 1981). The Supreme Court’s holding in Zipes, there-

fore, subjects the filing requirements to waiver, estoppel,

and equitable tolling. Zipes, 455 U.S. at 393. See generally

2 A. Larson & L. Larson, Employment Discrimination 48.13

id) (1) - 48.13 (d) (2) (discussion of waiver, estoppel, and

equitable tolling). Thus, the Court must analyze whether

plaintiffs filing of an appeal with the New Orleans Civil

Commission should permit him to assert the claim of

equitable to tolling and, hence, allow him to benefit from

the section’s 300-day filing period.

The Court finds, that as a matter of law, the New

Orleans Civil Service Commission does not qualify as “a

State or local agency with authority to grant or seek relief”

from discriminatory practices. The EEOC’s regulations

specifically list those state agencies and local agencies that

delay the time period for filing with the EEOC. The Court

finds neither the New Orleans Civil Service Commission

nor any other Louisiana state or local agency listed in these

regulations. 29 C.F.R. 1601.74 (1990); see Dyer v. Parish

of Jefferson, 619 F. Supp. 284, 286 (E.D. La. 1985).

Moreover, plaintiff does not allege in any of the pleadings,

and the Court finds no authority, that this local agency

may grant or seek relief from discriminatory practices as

required by section 2000e-5 (e).

The proceedings before the Civil Service Commission

represent plaintiffs appeal pursuant to his contractual

rights as an employee of the City of New Orleans. See Dyer.

619 F. Supp. at 287. Such proceedings to determine whether

his contractual rights have been violated do not constitute

the type contemplated in the discrimination statute to toll

its time requirement. In fact, the Supreme Court has held

A-9

that the legislative history of Title VII clearly permits a

party to pursue his rights independently under federal and

state statutes. Alexander v. Gardner-Denver Co., 415 U.

S. 36, 48 (1974). Plaintiff, therefore, did not preclude

himself from filing with the EEOC by first appealing to

the Civil Service Commission. No legal or other barrier

prevented Knight from making claims with the EEOC and,

hence, the Court cannot allow plaintiff the benefit of the

300-day Sling period under section 2000e-5 (e).2

The Court, having considered the arguments of counse!

in light of the relevant law, holds that plaintiff may not

maintain his claim of discrimination in this suit as a matter

of law. The undisputed fact that plaintiff failed to file his

claim with the EEOC within the 180-day time period

illowed under law precludes him from asserting a claim of

discrimination in this suit.

2. Plaintiffs legal Wiretap Claim

Defendants also filed a cross-motion for summary

judgment in response to plaintiffs motion for partial

summary judgment, seeking this Court’s determination on

the legality of the telephone recording at issue. Upon a

review of the pleadings, the relevant facts, and the

applicable law, the Court finds no material facts in dispute

to preclude summarvy judgment as a matter of law and holds

the telephone recording to have been legal.2

2Because the Court finds the recording in this matter to

have been legal, it does not reach the issue of whether

defendants may be held liable in damages for allegedly

releasing the recording’s contents to the public. The Court

will leave this issue to the discretion of the state judge

under the relevant state law.

A-10

The Court notes that “18 U.S.C. 2520 provides a civil

cause of action and statutory damages to individuals whose

wire or oral communications are intercepted.” Briggs v.

American Air Filter Co., 680 F. 2d 414, 416 (5th Cir. 1980);

see 18 U.S.C. 2520. In the instant action, plaintiff alleges

that he should be entitled to such damages because of the

police department's recording of his conversation. Defen-

dants, however, aver that, because an exception to this

statute applies in this action, plaintiffs claim should be

dismissed

Defendants argue that the “ordinary course of business”

exception of Title 18, United States Code, Section 2510 (5)

(a) Gt) applhies in this case. Section 2510 (5) (a) (i) provides:

(5) “electronic, mechanical, or other device” means

any device or apparatus which can be used to intercept

a wire, oral, or electronic communication other than--

(a) any telephone or telegraph instrument,

equipment or facility, or any component thereof,

(11) being used by a provider of wire or electronic

communication service in the ordinary course of

its business, or by an investigative or law

enforcement officer in the ordinary course of his

duties

18 U.S.C. 2510 (5) (a) Gi) (emphasis added). This excep-

tion, therefore, clearly excepts the police department from

the provisions of the federal wiretapping statute, if the

Court should find the recording of plaintiffs conversation

to have taken place in the ordinary course of the police

department’s business.

The Fifth Circuit in Briggs addressed the issue of a

telephone conversation monitored in the “ordinary “ourse

of business” and upheld the lower court’s dismissal of the

A-11

plaintiffs claims in that case. Briggs, 630 F. 2d at 420-421.

In reaching its conclusion that a supervisor had not listened

illegally to an employee's telephone conversation, the Fifth

Circuit stated:

Once the conclusion that a listening-in authorized

by neither of the parties to the communication can

never be “in the ordinary course of business” is

rejected, the proper resolution of this case becomes

relatively easy. If Congress intended to authorize any

type of interception not consented to by a party to the

communication, as we conclude it did, this is it. First,

the plaintiffs themselves submitted an affidavit

stating that this was a business, not a personal, cal] .

.. Second, .. . [the] act of listening-in was limited in

purpose and time .. . Third, the act of listening-in was

not part of a general practice of surreptitious

monitoring.

Id. at 420 (citations and footnotes omitted). Upon an

examination of facts before the Court, the Court finds

Briggs to support a conclusion that Congress also did not

mean to preclude the type of monitoring that took place in

this action.

The Court sts the decision in Jandak v. Village of

Brookfield, 520 &. Supp. 815 (N. D. Ill. 1981), to be particu-

larly instructive. In Jandak, the U.S. District Court for the

Northern District of Illinois held that

routine, nonsurreptitious, recording of a police investi-

gative line which results in the recording of a conver-

sation of an officer misusing the line for private pur-

poses, where the officer should have known that the

line was monitored, was in the ordinary course of the

police chief's duties as a law enforcement officer and

is exempted from the [federal wiretapping] statute by

Section 2510 (5) (a) (ii).

A-12

520 F. Supp. at 825. The police department in Jandak had

installed a telephone system much like the one

possessed by the New Orleans Police Department in that

it recorded nine out of ten lines and allowed personal calls

on the tenth line. Moreover, the eighth line did not have

an audible beeping device, which alerted parties to the

recording of their conversations.

The instant matter, in light of the courts’ rulings in

Briggs and Jandak, provides a more persuasive case for the

application of the “ordinary course of business” exception.

Captain Knight, who previously worked in_ the

Communications Division and, at the time of his retire-

ment, clearly must have known that the police department

recorded telephone calls placed to the communications

desk.3

3The testimony of Officer John Reilly before the New

Orleans Civil Service Commission on June 12, 1989, con-

firms that, for at least twenty-one years, the police depart-

ment taped the phones in the Communications Division

and most police officers knew about his taping. Doc. 67, Ex.

3. Furthermore, defendants offer the affidavit of Captain

James P. Treadway of the New Orleans Police Department

to support its contentions concerning plaintiffs knowledge

of the recordings. Doc. 67, Ex. 3. In this affidavit, Captain

Treadway states that, since 1975, all police officers assigned

to police communications receive an instruction about the

taping of all telephone instruments, with the exception of

one phone for personal calls. The allegations of plaintiff

concerning the lack of knowledge and consent to the taping

of this particular conversation do not create a material

issue of fact to preclude summary judgment nor refute the

evidence before the Court.

A-13

Further, unlike the officer in Jandak, the conversation

that took place between Captain Knight and Officer Reilly

clearly involved police business. Finally, the investigating

officer obtained Captain Knight’s comments during the

course of a routine investigation into charges of misconduct

levied against another police officer. The Court, under the

circumstances present, finds the taping of plaintiffs

conversation to have been in the “ordinary course of

business” of the New Orleans Police Department.4

The Court further holds, that as a matter of public

policy, the New Orleans Police Department and other police

departments must be protected against suits of this nature.

Congress, in prohibiting certain monitoring of oral and

wire communications, could not have meant to preclude

the sort of activity complained of by plaintiff. See Briggs,

630 F. 2d at 420. Police departments have a legitimate

interest in the efficient operation of their communications

activities. The monitoring and taping of telephone lines in

the Communications Division of the New Orleans Police

Department furthers this interest. If this Court were to

allow plaintiff to maintain his claim in this regard, the

4Plaintiff contends that statutory provisions under

Louisiana law prohibit a police department from recording

telephone conversations. The Court, however, finds that it

first must view plaintiffs allegations under federal law to

properly determine whether jurisdiction may be exercised.

Furthermore, in light of an opinion of the Attorney General

for the State of Louisiana on the state statute, the Court

expresses doubt that his claims will succeed under state

law. Op. Att’y Gen. No. 89-301 (La. Dec. 14, 1989). By

dismissing plaintiffs federal claims, the Court, however,

leaves this issue to the discretion of the state court judge

who will consider plaintiffs claims in that proceedings.

A-14

clear mandate of Congress in this area would be

contravened.

The Court, therefore concludes that no material fact in

dispute precludes summary judgment as a matter of law

on plaintiffs claims under Title 28, United States Code,

Section 2520, and all related statutes. As such, the Court

must dismiss the plaintiff's claims in this regard.

3. Plaintiffs Due Process Claims

Plaintiff, in his second amended complaint, alleges that

the defendants violated his rights under the Fourteenth

Amendment to the U. S. Constitution and title 42, United

States code, Section 1983. The Court raises the issue sua

sponte whether the facts support a cause of action in this

regard. Having reviewed the record and the applicable law,

the Court finds plaintiffs claims to border on frivolous but

will afford the parties an opportunity to provide further

briefing. Plaintiff should particularize the bases for his due

process claims and shall be allowed thirty days to do so.

CONCLUSION

The Court, in considering the motions before the Court,

has viewed the evidence in a light most favorable to

plaintiff. No material facts in dispute, however, preclude

the Court from granting defendants motions and dismissing

plaintiffs claims in their entirety. Under the relevant law,

plaintiff simply has failed to convince this Court that he

timely submitted his claims of discrimination or that he

alleges facts upon which a claim may be asserted under

Title 18, United States Code, Section 2520. The Court,

therefore, grants defendant’s motions and dismisses these

claims in their entirety.

s/ George Arceneaux, Jr.

A-15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORENZA KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS and SECTION “K"(1)

WARREN G. WOODFORK

ORDER

For the foregoing reasons;

IT IS ORDERED that:

Defendants’ motion to dismiss plaintiffs discrimi-

nation claim as untimely is hereby GRANTED.

Plaintiffs motion for partial summary judgment on

his claim under Title 18, United States Code, Section

2520, is hereby DENIED and defendants’ cross-

motion for partial summary judgment on this claim

is hereby GRANTED.

Plaintiff shall file briefing no later than July 31,

1991, which particularizes his claims under the

Fourteenth Amendment and Title 42, United States

Code, Section 1983, including the legal bases

therefore.

Defendants shall file a properly-noticed motion for

summary judgment on plaintiffs remaining claims

no later than August 21, 1991. Plaintiff shall file

any opposition to this motion in accordance with the

A-16

Federal Rules of Civil Procedure and the local rules

of this Court.

New Orleans, Louisiana, this Ist day of July, 1991.

s/ George Arceneaux, Jr.

UNITED STATES DISTRICT JUDGE

——

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORENZA KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS and SECTION “K" (3)

WARREN G. WOODFORK

MEMORANDUM AND ORDER

Defendants, the City of New Orleans (the “City”) and

Superintendent of Police Warren G. Woodfork

(“Woodfork”}, filed a motion for summary judgment,

seeking judgment as a matter of law on plaintiff Lorenza

Knight’s (“Knight”) remaining claims. Having reviewed

the memoranda in support and in opposition, the record,

and the applicable law, the court finds the defendants’

motion for summary judgment to have merit. |

BACKGROUND

The court recited the facts and procedural background

of this case in its Memorandum and Order of July 2, 1991.

The court, therefore, will not repeat them herein.

DISCUSSION

1. Plaintiffs Due Process Claims

IThe court finds it necessary to address plaintiffs

intimation that this court may have pre-judged the merits

of this motion. On the contrary, it has given all of plaintiffs

claims serious consideration under applicable law.

B-2

Plaintiff Knight first contends that his involuntary re-

tirement from the New Orleans Police Department

constituted a denial of due process under the Fourteenth

Amendment, and, thus, he seeks redress under 42 U.S.C.

1983. An essential principle of due process is that a

deprivation of life, liberty, or property “be preceded by

notice and opportunity for hearing appropriate to the

nature of the case.” Mullane v. Central Hanover Bank &

Trust Co., 339 U. S. 306, 313 (1950). In this case, Knight

contends that the defendants deprived him of both liberty

and property interests without due process.

a. Plaintiffs Property Interest

Tenured civil service employees have a property interest

in their continued employment. Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538-39 (1985). In order to satisfy

the procedural due process requirement, an individual must

be given an opportunity for a hearing before he is deprived

of any significant property interest. Boddie v. Connecticut,

401 U. S. 371, 379 (1971). This principle requires “some

kind of a hearing” prior to the discharge of an employee

who has a constitutionally protected property interest in

his employment. Board of Regents v. Roth, 408 U. S. 564,

569 - 70 (1972); Perry v. Sindermann, 408 U. S. 593, 599

(1972). The United States Supreme Court cleariy has

indicated the prerequisites of such a hearing.

The Court, in Mathews v. Eldridge, 424 U.S. 319 (1976),

held that, in general, “something less” than a full

evidentiary hearing is sufficient prior to adverse

administrative action, where one, who has been deprived

of a property interest, is later entitled to a full administra-

tive hearing and judicial review under state law. Id. at 343.

More specifically, the United States Supreme Court has

—EE————a__aaa

B-3

stated that the pretermination hearing need not defini-

tively resolve the property of the discharge. It should

be an initial check against mistaken decisions -- essen-

tially, a determination of whether there are reasonable

grounds to believe that the charges against the em-

ployee are true and support the proposed action... .

....The tenured public employee is entitled to oral or

written notice of the charges against him, an

explanation of the employer’s evidence, and an oppor-

tunity to present his side of the story. To require more

than this prior to termination would intrude to an

unwarranted extent on the government’s interest in

quickly removing an unsatisfactory employee.

Loudermill, 470 U. S. at 545-46 (citations omitted).

Therefore, Knight, as a tenured civil service employee. has

a property interest in his continued employment with the

New Orleans Police Department, and is entitled to notice

and a hearing as articulated by the Supreme Court in

Loudermill.

b. Plaintiff's Liberty Interest

A constitutional deprivation of liberty occurs when

there is some injury to employment or employment oppor-

tunities in addition to damage to reputation and a sub-

sequent denia! of procedural due process to redress that

injury. In re Selcraig, 705 F. 2d 789, 796 (5th Cir. 1983).

If an employee’s reputation was damaged by the truth, even

though procedures were deficient, the injury is not

compensable under 42 U.S.C. 1983. Rather, an employee

could obtain only nominal damages for the procedural de-

privation itself. Myrick v. City of Dalias, 810 F. 2d 1382,

1385 (5th Cir. 1987) (quoting Carey v. Piphus, 435 U. S.

247, 263, 266, (1978). Knight contends that the New Orleans

B-4

Police Department’s press release of information regarding

his involuntary retirement, as well as the subsequent news-

paper articles concerning the same, damaged his reputation

and limited his employment opportunities.

Knight, however, fails to establish that any of the infor-

mation conveyed to the public by the police press release

or the corresponding newspaper articles is untrue. There-

fore, because the truth was the source of the damage to

Knight’s reputation, only nominal damages would be avail-

able under 42 U.S.C. 1983 if a deprivation of procedural

due process occurred.

Defendants, however, would not deprive Knight of

liberty without due process if, in a hearing about his

dismissal, he had an adequate opportunity to preserve or

regain his reputation, as well as his job. Plaintiffs liberty

interest claim, therefore, is inextricably intertwined with

the adequacy of the pretermination proceedings regarding

his property interest claim.

c. Notice and a Hearing

Defendants did not violate Knight’s due process rights

in his pretermination proceedings. Under the applicable

legal standards, Knight received sufficient notice and an

adequate opportunity to be heard to satisfy the require-

ments of procedural due process. The undisputed facts show

that during the initial investigation, Knight received notice

of the nature and reasons for the investigation. In fact,

plaintiff read a lengthy prepared statement in response,

which demonstrated such kn’ wledge. Moreover, in a letter

dated October 20, 1988 (following the investigation and a

prior to the disciplinary hearing), Superintendent Wood-

fork informed Knight of the results of the investigation and

the charges made against him. Defendants, therefore,

B-5

gave Knight sufficient notice of the charges against him

prior to involuntary retirement.

Defendants also afforded Knight an _ adequate

opportunity to be heard. At the disciplinary hearing before

Superintendent Woodfork on November 7, 1988, Knight

again read a prepared statement in response to the charges

made against him, Knight and Superintendent Woodfork

further discussed the charges, and Knight’s attorney made

a brief statement. The actions provided an adequate oppor-

tunity for Knight to be heard prior to his discharge

Plaintiff further contends that, because Superintendent

Woodfork allegedly prejudiced this case, the proceedings

did not represent a meaningful opportunity to be heard.

Knight, however, was not entitled to have his pretermina-

tion hearing conducted by a fair and impartial decision

maker; his discharging supervisor is allowed to conduct

such a hearing. Duchesne v. Williams, 849 F. 2nd 1004,

1005 (6th Cir. 1988), cert. denied, 489 U.S. 1081 (1989);

see 1 M. Schwa. tz 3.14 at 219 (2d ed. 1991). Consequently,

Knight’s claim that Woodfork had make up his mind prior

to the disciplinary hearing of November 7, 1988, and, thus,

constituted a biased decision maker is of no consequence.

Knight, citing Levine v. Town of W. Hartford Police

Dept., 541 F. Supp. 741 (D. Conn. 1982), also contends that

when specific regulations and laws govern municipal

employment, a municipality is lawfully obliged to comply

with the procedures outlined in those regulations and laws.

This court, however, finds no violation of any applicable

regulation or law in this matter. As discussed above, Knight

had sufficient notice of the charges against him; therefore,

the defendants satisfied the requirement that the law

enforcement officer being investigated know the nature of

the investigation at its commencement. La. Rev. Stat. Ann.

B-6

40:2531 (B) (1) (West 1991). In addition, the entitlement

Knight claims to a copy of any recording upon written

request is misplaced; he is entitled to a copy of the recording

of his statements at the interrogation, but not a copy of the

recorded telephone conversation. La. Rev. Stat. Ann.

40:2531 (B) (3) (West 1991). Lastly, in its Memorandum

and Order of July 2, 1991, this court disposed of any and

all claims based upon the alleged illegality of the

interception of Knight’s phone conversation with Officer

John Reilly; therefore, public disclosure of this conversation

does not run afoul of the law.

In sum, because defendants afforded Knight sufficent

notice and an adequate opportunity to be heard, plaintiff

received due process. Accordingly, the court must dismiss

Knight's deprivation of due process claim.

2. Plaintiffs Equal Protection Claim

Plaintiff Knight next contends that his involuntary

retirement from the New Orleans Police Department con-

stituted a denial of equal protection of the laws under the

Fourteenth Amendment, and, thus, he seeks redress under

42 U.S.C. 1983. Knight claims that Superintendent Wood-

fork, due to racial prejudice, treated whites and blacks dis-

parately.

Section 1983 requires that “discriminatory intent, as

well as disparate impact, must be shown in employment

discrimination suits brought against public employers . . .

_” Castaneda v. Pickard, 648 F. 2d 989, 1000 (5th Cir. Unit

A June 1981). Knight, however, has not sufficiently made

such allegation, no less raised triable issues of material

fact, of such discriminatory intent or disparate impact.

Consequently, the court finds that the pleadings and the

record in this case do not support Knight’s contention that

B-7

the defendants intentionally discriminated against him

under the relevant case law. The court, therefore, must

dismiss Knight’s denial of equal protection claim.

3. Plaintiffs Freedom of Speech Claim

Plaintiff Knight belatedly contends that his involun-

tary retirement from the New Orleans Police Department

also violated his right of free speech under the First Amend-

ment. Knight, however, has failed to assert this issue until

this motion; his claim of a First Amendment freedom of

speech violation, therefore, is not cognizable. Nevertheless,

even if Knight had sufficiently pled this claim it is without

merit.

In applying the test of Pickering v. Board of Educ., 391

U. S. 563, 568 (1968), the interest of the City, as an

employer, in promoting the efficiency of the public services

it performs through its employees, outweights Knight's

right to engage in racist and sexist speech in the workplace.

The defendants, therefore, did not violate Knight’s First

Amendment rights.

4 Plaintiffs Pendent State Law Claims

Because the court has dismissed Knight's remaining

federal claims, only his state law claims remain. When

federal law claims in an action based on federal question

jurisdiction are eliminated and only state law claims

remain, the federal court should not continue to exercise

jurisdiction. Federal courts may relinquish jurisdiction

by either dismissing the case without prejudice or

remanding the case to state court. Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 350-51 (1988). The United States

Supreme Court in United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966), stated:

B-8

Needless decisions of state law should be avoided both

as a matter of comity and to promote justice between

the parties, by procuring for them a surer-footed read-

ing of applicable law. Certainly, if the federal claims

are dismissed before trial, even though not insubstan-

tial in a jurisdictional sense, the state law claims

should be dismissed as well.

Accordingly, this court must dismiss Knight’s state law

claims without prejudice. Knight is free to seek his remedies

in state court and, in fact, has done so; he has instituted

an action presently pending in state court. Therefore, be-

cause the state court will provide an adequate forum for

Knight’s state law claims, remanding this case to state

court is not necessary, and there is no prejudice in dismis-

sing those claims.

CONCLUSION

The court, in considering the motion before it, has

viewed the evidence in a light most favorable to plaintiff.

No material facts in dispute, however, preclude the court

from granting defendants motion for summary judgment.

The court, therefore, GRANTS the motion and dismisses

plaintiffs claims in their entirety.

IT IS SO ORDERED.

New Orleans, Louisiana, this 24th day of October, 1991.

‘'s/ George Arceneaux, dr.

GEORGE ARCENEAUX, JR.

UNITED STATES DISTRICT JUDGE

C-]

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3921

LORENZA HOLMES KNIGHT

Plaintiff-Appellant.

versus

CITY OF NEW ORLEANS, NEW ORLEANS POLICE

DEPARTMENT and WARREN G. WOODFORK.

Defendant-Appellees.

Appeal from the United States

District Court

for the Eastern District of Louisiana

(CA-89-3409-K)

Before POLITZ, Chief Judge, SMITH and

BARKSDALE, Circuit Judges.

PER CURIAM:*

This matter is before the court on appeal by Lorenza

Holmes Knight from adverse summary judgments rejecting

his 42 U.S.C. 2000e, federal wiretapping, and constitutional

claims. Having considered the briefs, oral arguments of

counsel, and pertinent parts of the record, we conclude that

for the reasons assigned and authorities cited by the district

0 SS

C-2

court judge in his Orders signed and entered on July 2,

1991, and October 25, 1991, the judgment appealed is AF-

FIRMED.

“Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession.” Pursuant to that Rule, the Court has deter-

mined that this opinion should not be published.

D-1

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORENZA KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS SECTION “K” (1)

ET AL

AFFIDAVIT

BEFORE ME NOTARY PUBLIC, personally came and

appeared John Reilly who after being duly sworn did depose

and say that:

He is a person of full age of majority and resident of the

State of Louisiana;

That on August 6, 1988 at approximately 11:30 p.m. he

was employed by the New Orleans Police Department and

was assigned to the Communications Section, Command

Desk;

AFFIANT did further say that on that date and time

he engaged in a telephone conversation with Captain

Lorenza H. Knight; P

AFFIANT also did further say that he did not know

that the above mentioned telephone conversation was being

tape recorded;

AFFIANT did further say that because of the telephone

inh

D-2

system utilized on the Command Desk it was impossible

for him to know the telephone number upon which this

telephone conversation took place;

AFFIANT further sayeth that at no time did he consent

to the tape recording of the telephone conversation between

himself and Captain Lorenza H. Knight;

FURTHER AFFIANT SAYETH NOT.

s/ John Reilly

JOHN REILLY

AFFIANT

WITNESSES:

s/ Julie Wischan

s/ Beth Griffin

Sworn to and subscribed before me at

New Orleans, Parish of Orleans, Louisiana

this 10th day of October, 1990.

s/ June Mary Selzer

June Mary Selzer

E-1

- APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORENZA KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS SECTION “K” (1)

AFFIDAVIT

BEFORE ME NOTARY PUBLIC, personally came and

appeared Lorenza Holmes Knight who after being duly

sworn did depose and say that:

He is a person of full age of majority and resident of the

State of Louisiana;

AFFIANT did further say that on August 6, 1988 he

was employed as a captain by the New Orleans Police De-

partment and had been an employee of the New Orleans

Police Department in excess of 23 years;

AFFIANT did further say that on the above mentioned

date at 11:30 p.m. in response to a call on his beeper he

placed a call, from a telephone outside of the New Orleans

Police Department, to Officer John Reilly at the Communi-

cations Section, Command Desk;

AFFIANT also did further say that he did not know

that his telephone conversation with Officer Reilly was

being tape recorded;

ill

E-2

AFFIANT did further say that at no time did he consent

to the tape recording of his telephone conversation with

Officer John Reilly;

AFFIANT did further say that at no time did he consent

to the contents of the telephone conversation with Officer

Reilly being disclosed to any person, firms or corporations,

other than Officer Reilly:

AFFIANT further sayeth that in the mid-1970’s for a

period of approximately six months he was in charge of the

Command Desk, but at that time, the Command Desk was

physically located in a different location, utilizing an en-

tirely different telephone system than the one being utilized

on August 6, 1988;

AFFIANT also sayeth that at the time he was in charge

of the Command Desk in the mid-1970s, he did not know

that telephone conversations on the Command Desk were

being recorded nor was he given any training, instructions

or directions into the operations and functions of the Com-

mand Desk.

FURTHER AFFIANT SAYETH NOT.

s/ Lorenza Holmes Knight

LORENZA HOLMES KNIGHT

AFFIANT

WITNESSES;

s/ Julie Wischan

‘s/ Beth Griffin

E-3

Sworn to and subscribed before me at

New Orleans, Parish of Orleans, Louisiana,

this 17th day of October, 1990

‘/s/ June Mary Selzer

June Mary Selzer

F-1

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORENZA H. KNIGHT CIVIL ACTION

VERSUS NO. 89-3409

CITY OF NEW ORLEANS SECTION “K” (3)

ETAL

AFFIDAVIT

BEFORE ME, Notary Public, personally came and

appeared Gerard A. Salles, Sr., 132 Cawthorn Drive, Slidell,

LA, who after being duly sworn did depose and say that:

On July 1, 1990, he retired from the New Orleans Police

Department with the title of Major;

That from 1969 until the time of his retirement he was

assigned to the Internal Affairs Division of the New Orleans

Police Department;

That in August, 1988, he was Commander of the

Internal Affairs Division;

That shortly after August 6, 1988, he was contacted by

Major Calvin Galliano who advised him of an incident

involving a conversation between Captain Lorenza Holmes

Knight and Officer John Reilly which had been tape

recorded;

That Major Galliano directed him to conduct an

F-2

investigation concerning the incident and that Superinten-

dent Woodfork had a copy of the tape recording;

That shortly thereafter he went to Superintendent

Woodfork’s office and at that time Superintendent Wood-

fork played the tape recording for him, which recording

was partially inaudible;

That Superintendent Woodfork informed him that

Sergeant Melvin Howard had the original copy of the re-

cording of the conversation and would bring it to him;

That when Sergeant Howard brought his copy of the

recording to him, it also was partly inaudible so he had one

of his officers assigned to Internal Affairs Division make

another recording from the original recording located in

the Electronics Section;

That Pursuant to the Standard Operating Procedures

of the Operations Manual of the New Orleans Police Depart-

ment, on September 6, 1988, Captain Knight was required

to give a recorded statement to him;

That at that beginning of the recorded statement from

Captain Lorenza Holmes Knight, Knight demanded to

know the nature of the charges against him;

That at that time Captain Knight was not advised of the

nature of the charges against him;

That upon the conclusion of taking Knight’s statement

he informed Superintendent Woodfork that, in nis opinion,

Captain Knight had violated none of the rules and regula-

tions of the New Orleans Police Department;

F-3

That upon hearing Affiant’s conclusions regarding his

opinion, Superintendent Woodfork became very angry and

set up a meeting with members of the Citv Attorney’s office

to determine what specific departmental charges could be

brought against Captain Knight;

That he was not allowed to give Captain Knight copies

of the tape recordings of the conversation between Captain

Knight and Officer Reilly or any of the other evidence

against Captain Knight;

That to his personal knowledge, information and belief

a copy of this recording was played to members of the public,

the media, and at meetings of the Black Organization of

Police and that only members of the New Orleans Police

Department in control of a copy of the subject tape recording

could have disseminated the contents of the taped conver-

sation between Captain Knight and Officer Reilly to mem-

bers of the public and media;

That during the course of his investigation he became

aware of a tape recorded conversation between Captain

James Howley and Officer John Reilly that occurred at the

same time as the conversation between Captain Lorenza

Holmes Knight and Officer John Reilly;

That he brought the conversation between Captain

Howley and Officer Reilly to the attention of Superinten-

dent Woodfork and an investigation of Captain Howley was

initiated at the order of Superintendent Woodfork;

That on September 22, 1988, he obtained a recorded

statement from Captain James Howley and at that time

Howley demanded to know the nature of the charges

against him;

F-4

That Howley was advised of the nature of the charges

against him;

That affiant was partially responsible for rewriting the

Standard Operating Procedures of the New Orleans Police

Department prior to the Knight incident and was fully and

totally familiar with the contents thereof:

That the present Department Rule regarding discrimi-

nation requires that an affirmative action be taken by an

officer before he can be in violation of this Rule, and that

speech, alone, is not sufficient to constitute discrimination

as an Officer has a right to Freedom of Speech;

That Captain Knight’s conversation with Officer Reilly

did not constitute a public statement even though it in-

volved Police Business since it was a conversation between

two members of the police department who had been friends

for over twenty years and was not disseminated, nor in-

tended to be disseminated, by either of the two parties to

any members of the public;

That at the time of the investigation, and at all times

subsequent, he is of the opinion that Captain Lorenza

Holmes Knight did not violate any of the rules and regula-

tions of the New Orleans Police Department during his

taped telephone conversation with Officer John Reilly.

Affiant did further say that in his capacity as Comman-

der of the Internal Affairs Division he became aware of an

incident that occurred before the Knight incident wherein

Sergeant Chris Maurice, a black officer, did, according to

statements taken from several of Maurice’s neighbors, use

racial slurs against those neighbors by calling them “black

Mother-Fuckers” and did pull and point his gun at them;

and;

saree

F-5

That the discipline received by Sergeant Maurice from

the New Orleans Police Department was suspension for

three days and he was subsequently promoted to the rank of

Lieutenant.

Affiant did also say that he, in his capacity of comman-

der of the Internal Affairs Division, became aware of an

incident that occurred a few months after the occurrence

of the Knight incident wherein Lt. Mitchell Dusset, a black,

did according to statements of several other officers, in a

public restaurant and in front of members of the public,

use racial slurs against several subordinate white officers

by calling them “white Mother-Fuckers”;

That as a result of that incident the discipline against

Lt. Dusset was a letter of reprimand; and

That shortly after the incident set forth above, Lt. Dus-

set was promoted to the rank of Captain.

Further affiant saith not.

s/ Gerard A. Salles, Sr.

GERARD A. SALLES, SR.

SWORN TO AND SUBSCRIBED

BEFORE ME THIS 6TH DAY

OF SEPTEMBER, 1991.

/s/ Dale W. Poindexter

NOTARY PUBLIC

G-1

APPENDIX G

18 U.S.C. 2510, et seq.

2511. Interception and Disclosure of Wire, Oral, or Elec-

tronic Communication Prohibited.

(1) Except as otherwise specifically provided in this

chapter any person who --

(a) intentionally intercepts, endeavors to intercept,

or procures any other person to intercept or endeavor

to intercept, any wire, oral, or _ electronic

communication;

(b) intentionally uses, endeavors to use, or procures

any other person to use or endeavor to use any elec-

tronic, mechanical, or other device to intercept any

oral communication when --

(i) such device is affixed to, or otherwise trans-

mits a signal through, a wire, cable, or other like

connection used in wire communication; or

(ii) such device transmits communications by

radio, or interferes with the transmission of such

communication; or

(iii) such person knows, or has reason to know,

that such device or any component thereof has

been sent through the mail or transported in in-

terstate or foreign commerce; or

kk KKK *

1-2

(iv) such person acts in the District of Colum-

bia, the Commonwealth of Puerto Rico, or any

territory or possession of the United States;

to any other person the contents of any wire, oral, or

electronic communication, knowing or having reason

to know that the information was obtained through

the interception of a wire, oral, or electronic communi-

cation in violation of this subsection; or

(d) intentionally uses, or endeavors to use, the con-

tents of any wire, oral, or electronic communication,

knowing or having reason to know that the informa-

tion was obtained through the interception of a wire,

oral, or electronic communication in violation of this

subsection;

shall be punished as provided in subsection (4) or shal]

be subject to suit as provided in subsection (5).

* * KX *X KX *

a person acting under color of law to intercept a wire,

oral, or electronic communication, where such person

is a party to the communication or one of the parties

to the communication has given prior consent to such

interception.

(d) It shall not be unlawful under this chapter for

a person not acting under color of law to intercept a

wire, oral, or electronic communication where such

person is a party to the communication or where one

of the parties to the communication has given prior

consent to such interception unless such communication

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is intercepted for the purpose of committing any crim-

inal or tortious act in violation of the Constitution or

laws of the United States or of any State.

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2520. Recovery of Civil Damages Authorized

(a) In general. -- Except as provided in section 2511 (2)

(a) (ii), any person whose wire, oral, or electronic communi-

cation is intercepted, disclosed, or intentionally used in

violation of this chapter may in a civil action recover from

the person or entity which engaged in that violation such

relief as may be appropriate.

(b) Relief. -- In an action under this section, appropriate

relief includes --

(1) such preliminary relief and other equitable or

declaratory relief as may be appropriate;

(2) damages under subsection (c) and punitive dam-

ages in appropriate cases; and

(3) a reasonable attorney’s fee and other litigation

costs reasonably incurred.

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APPENDIX H

LOUISIANA STATUTES ANNOTATED/REVISED

STATUTES 15:1301, et seq.

1303. Interception and Disclosure of Wire or

Oral Communications Prohibited

A. Except as otherwise specifically provided in this

Chapter, it shall be unlawful for any person to:

(1) Willfully intercept, endeavor to intercept, or procure

any other person to intercept or endeavor to intercept, any

wire or oral communication: .

(2) Willfully use, endeavor to use, or procure any other

person to use or endeavor to use any electronic, mechanical,

or other device to intercept any oral communication when;

(a) Such device is affixed to, or otherwise transmits

a signal through, a wire, cable, or other like connection

used in wire communication; or

(b) Such device transmits communications by radio,

or interferes with the transmission of such

communication;

(3) Willfully disclose, or endeavor to disclose, to any

other person the contents of any wire or oral communicati-

ion, knowing or having reason to know that the information

was obtained through the interception of a wire or oral

communication in violation of this Subsection; or

(4) Willfully use, or endeavor to use, the contents of any

wire or oral communication, knowing or having reason to

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know that the information was obtained through the inter-

ception of a wire or oral communication in violation of this

Subsection. Any person who violates the provisions of this

Subsection shall be fined not more than ten thousand dol-

lars and imprisoned for not less than two years nor more

than ten years at hard labor, without benefit of probation,

parole, or suspension of sentence.

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(3) It shall not be unlawful under this Chapter for a

person acting under color of law to intercept a wire or oral

communication, where such person is a party to the com-

munication or one of the parties to the communication has

given prior consent to such interception. Such a person

acting under color of law is authorized to possess equipment

used under such circumstances.

(4) It shall not be unlawful under this Chapter for a

person not acting under color of law to intercept a wire or

oral communication where such person is a party to the

communication or where one of the parties to the communi-

cation has given prior consent to such interception, unless

such communication is intercepted for the purpose of com-

mitting any criminal or tortious act in violation of the con-

stitution or laws of the United States or of the state or for

the purpose of committing any other injurious act.

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1307. Prohibition of Use as Evidence of Intercepted

Wire or Oral Communications

Whenever any wire or oral communication has been

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intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in evi-

dence in any trial, hearing, or other proceeding in or before

any court, grand jury, department, officer, agency, regulat-

ory body, legislative committee, or other authority of the

state, or a political subdivision thereof, if the disclosure of

that information would be in violation of this Chapter.

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*1312. Recovery of Civil Damages Authorized

A. Any person whose wire or oral communication is

intercepted, disclosed, or used in violation of this Chapter

shall:

(1) Have a civil cause of action against any person who

intercepts, discloses, or used, or procures any other person

to intercept, disclose, or use such communications, and be

entitled to recover from any such person:

(a) Actual damages, but not less than liquidated dam-

ages computed at the rate of one hundred dollars a day for

each day of violation or one thousand dollars, whichever is

greater; and

(b) Punitive damages; and

reasonably incurred.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.