Trotter v. City of Dall.

KRISTOPHER KELLY TROTTER, Plaintiff, v. CITY OF DALLAS, TEXAS, Defendant.

Case No. 3:19-cv-1327-L-BT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 14, 2020

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant the City of Dallas's "Motion to Dismiss Plaintiff's First Amended Complaint," (ECF No. 23), requesting the Court dismiss all of Plaintiff Kristopher Trotter's ("Trotter") claims against it. For the reasons stated, the Court should GRANT Defendant's motion and DISMISS without prejudice Trotter's claims against Defendant the City of Dallas (the "City").

Background

Plaintiff Kristopher Trotter, a Dallas Police officer, alleges that on August 18, 2018, "a business owner who owns a [sic] LGBT bar in the area of [Trotter's] legal beat responsibility," lodged a false harassment complaint against him. First Am. Compl. 2 (ECF No. 20). As a result, Trotter's "watch commander," Lieutenant Chandra Griffith sent him home early that day and restricted him to station security the next day. Id. Trotter objected that the complaint was false and "overblown because of the political influence of the LGBT constituency." Id. On August 20, 2018, Trotter's supervisor, Sergeant Jared Pomponio, informed him the complaint would be referred to the Dallas Police Department's (DPD) Internal Affairs Division for a formal investigation and that "[Trotter's] efforts to speak to his chain of command regarding [Trotter's] concern of political influence would be met with indifference." Id. 3. Therefore, once Trotter was home, he posted on the Dallas Police Association's (DPA) Facebook group page to address his concerns. Id. This group is comprised of mostly DPD officers and some civilians. Id. The post reads:

Is there anywhere in DPD where morale is good? Where hard work is rewarded and laziness addressed? Where camaraderie exists outside of commiserating before and after detail? Where officers abide by the duty prescribed by the code of conduct and where politics have no bearing on how we treat citizens of different types? Where not every good officer has left, or is making plans to? Where leaders know that if we cannot stand for ourselves, we will not be able to stand for others? Where personal bias and vendettas are not employed in a professional environment?

Please let me know. I want DPD to improve and not rot away while we sit in details mostly empty of bodies and even more empty of motivation or encouragement. The DPD pay issue is of great concern, but it's not the only one to be addressed.

What can we do?

Id. 3-4. The post received 76 comments and 25 "likes." Id. 4.

Then on August 22, 2018, once Trotter returned to work, Sergeant Albert Wagner presented him with a written order prepared by Lieutenant Griffith,ordering him "not to respond to calls for routine police assistance or perform any proactive law enforcement in the area surrounding the complaining bar." Id. Trotter alleges Sergeant Wagner also stated, "[Trotter] would likely be removed from [his] beat . . . and moved to a different sector and supervisor." Id. Trotter "again protested that the issue seemed political," and Sergeant Thomas Illingworth, who was also present at the meeting, "agreed . . . stating that 'it is political,' but that [Trotter] should follow orders without protest regardless of his concerns for political subversion." Id. Trotter did not heed this advice, and once he returned home that day, he "posted the written order to the Facebook page in continuation of his August 20, 2018 [Facebook] post." Id. This second post stated:

I got a complaint about a two hour effort to enforce DWIs on my beat. They called the station, lied about my actions, and demanded we stop. Since we [Northwest Third Watch] cater to criminality, and are subservient to political influence (aka compromised), I am being removed from the beat that I spend a lot of effort in developing a relationship with. Sorry, we tried to step up DWI enforcement in light of our officer being killed recently by a drunk driver. Welcome to 5 [Northwest Patrol Division].

Id. Trotter alleges multiple people within the DPA Facebook group saw this post and that it "was shared externally by at least one person where it was seen by multiple people outside of the DPA Facebook" group. Id. 5.

On August 23, 2018, Detective Christine Dreher Bush, coordinator for the DPD's Employee Support Program, called Trotter and stated that "his Facebook post was screenshot by an unknown party and that it was causing embarrassmentto the Northwest Patrol Division." Id. She allegedly "told [Trotter] to immediately delete the Facebook post concerning political subversion because it 'violated policy' and . . . embarrassed his chain of command at the Northwest patrol station." Id. Detective Bush then allegedly called Trotter back from her personal phone that was "not subject to monitoring by the Defendant City of Dallas" and told him that "she had been speaking to Lieutenant Griffith and" Lieutenant Griffith's supervisor, and "since they were embarrassed by the post, they were going to 'hammer [Trotter],'" meaning that they "planned to place [Trotter] into the Employee Support Program with a 'failure to progress' classification as punishment." Id. 5-6. Bush purportedly told Trotter that this punishment would "cause a negative annotation to be placed in [his] Dallas Police personnel file" that would allow for enhancing future disciplinary action and affect selection for specialized units or promotion. Id. 6. As a result, Trotter deleted his post and suspended his Facebook account. Id.

On August 24, 2018, Trotter received a call from Sergeant Wagner wherein he "impressed upon [Trotter] the need to 'be a good teammate' and not attempt to appeal or fight against any retaliation to be imminently set forth by members of the [DPD's] command staff in response to [Trotter's] Facebook post." Id. Then on August 29, 2018, Sergeant Wagner and Lieutenant Griffith presented Trotter with a memorandum dated August 23 "that indicated he would be placed on a non-public contact restricted duty assignment in preparation for an immediate 30-day reassignment." Id. 7. That "memorandum also stated that [Trotter] was restrictedfrom working any off-duty employment until further notice." Id. Next, on September 12, 2018, Detective Bush asked Trotter to attend a meeting at DPD headquarters. Id. At that meeting, Trotter received a memo that Chief Anderson reassigned him from patrol duty to the property room until further notice; Sergeant Wagner stated Trotter was reassigned because of the bar's complaint and Trotter's Facebook post. Id. Trotter was still not permitted to engage in off-duty employment. Id. The next day, Trotter reported to the property room, where he was assigned for nearly a year. Id. 8.

Trotter contends this reassignment "affects his ability to compete for future positions of prestige or promotion," and, because he was not permitted to engage in off-duty employment, he "was unable to continue his extra jobs . . . or participate in other patrol overtime functions" to his financial detriment. Id. 8-9. To provide tangible evidence of the detrimental effect of "an involuntary transfer to the property room," Trotter created a Facebook poll on May 27, 2019, available to the 1,199 members of the DPA's Facebook group. Id. 9. The poll asked whether the officers felt that an involuntary, non-injury-related assignment to the property room was considered a punishment or less prestigious than patrol. Id. After the first two days, 114 out of 122 respondents voted "yes." Id.

On June 26, 2019, Trotter received a written reprimand for two complaints sustained by the DPD's Internal Affairs Division: "violating the social media policy and releasing a departmental record without permission." Id. 10. Trotter appealedthis reprimand, but the hearing on that appeal had not taken place as of January 2, 2020. Id.

Trotter contends the DPD's social-media policy, which appears in the DPD Code of Conduct promulgated by the chief of police and the DPD General Orders, "is primarily an overbroad prior restraint on protected speech and is unconstitutional." Id. 10-11. Specifically, he alleges DPD Code of Conduct 4.7 provides:

Employees shall not publicly criticize or ridicule the Department, its policies, or other employees by talking, writing, or expressing in a manner which:

A. Is defamatory.

B. Is obscene.

C. Is unlawful.

D. Tends to impair the operation of the Department by interfering with its efficiency, by interfering with the ability of supervisors to maintain discipline, or by a reckless disregard for the truth.

Id. 15. And DPD General Order 214.04, "Precautions and Prohibitions on Employee Personal Use of Social Media," includes the following:

Unless contrary to any federal law, state law, or city ordinance, employees shall abide by the following when using social media for personal use:

A. Employees are free to express themselves as private citizens on social media sites to the degree that their speech and/or language does not impair working relationships of the Department, impede the performance of their duties, impair discipline andharmony among coworkers, or negatively affect the public perception of the Department.

D. Employees shall not post speech involving on-duty conduct of themselves or other employees that reflects behavior that would reasonably be considered reckless, irresponsible or would bring discredit to themselves or the Dallas Police Department or City of Dallas.

E. Employees shall not post speech to social media networks that contain obscene or sexually explicit language, images, acts, statements, or other forms of speech that ridicule, malign, disparage, or otherwise express bias toward any individual or group.

F. Employees shall not post speech involving themselves or other employees reflecting behavior that maligns, embarrasses, or causes disrepute to the

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