Venable v. Metro. Gov't of Nashville

430 F.Supp.3d 350

Anthony VENABLE, Plaintiff,

v.METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, Defendant.

No. 3:18-cv-00148

United States District Court, M.D. Tennessee, Nashville Division.

Filed December 20, 2019

David Louis Raybin, Raybin & Weissman, P.C., Nashville, TN, Larry Lamont Crain, Brentwood, TN, for Plaintiff.

J. Brooks Fox, Metropolitan Legal Department, Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is a Motion for Summary Judgment by the Metropolitan Government of Nashville and Davidson County ("Metro") (Doc. No. 17), which has been fully briefed by the parties (Doc. Nos. 18, 21, & 26). For the reasons that follow, the Motion will be granted and this case will be dismissed.

I. Factual Background

On July 6, 2016, Philando Castile, his girlfriend Diamond Reynolds, and their daughter were riding in a car in Falcon Heights, Minnesota, when they were pulled over by Jeronimo Yanez, a St. Anthony, Minnesota police officer. During the course of the traffic stop, Castile was shot four times, the aftermath of which Reynolds live-streamed on Facebook. The shooting captured the attention of individuals nationwide, and followed officer-involved shootings in Ferguson, Missouri (that led to protest and marches around the country, including in Nashville); Baton Rouge, Louisiana; and Dallas, Texas.

The day after the Falcon Heights shooting, Anthony Venable, who had been an officer with the Metropolitan Nashville and Davidson County Police Department ("MNPD") since December 2007, engaged in a Facebook conversation regarding that shooting. At the time, Venable was off-duty.

During the course of the conversation, Venable posted a number of comments, including:

• "Yeah, I would have done 5," in response to a comment that Castile was shot 4 times.

• "You don't shoot just one. If I use my weapon, I shoot to kill and stop the threat."

• "It's real and it's what every cop is trained to do. Move to Mexico."

• "There ARE bad cops!!! NO one is sitting here saying every cop is a good one. Ha. Why are you not talking about how many white people are killed by cops every day!?!?!?!? You are given statistics that more whites are killed by cops than blacks yet you still stay on the issue of feeling sorry for blacks or only post if a black is involved. You're blind"

• "Obviously he would smell it [the odor of marijuana]. Watch the video. The woman even says oh and we have weed in the car. Lol you don't know facts and you don't know police work You sit on the outside and judge what you only see not what you KNOW. If you want to see how it is you get your ASS up and strap on a vest and 25lbs of gear and you go out and put your pretty little life on the line every f***king day."

• "Stop bitching about the people who protect you."

(Doc. No. 17-1, Administrative Record ("AR") at 370-376). One participant in the Facebook conversation warned Venable that he could be in "serious trouble" based on the "grossly unprofessional" statements. Another expressed the hope that Venable's comments not "go viral." (Id. at 251).

In posting his comments, Venable never stated he was an MNPD officer. Nevertheless, within minutes of the postings, Sergeant James Capps of MNPD's Office of Professional Accountability received a complaint about Venable from Alena Chandler of Madison, Alabama who was one of the participants in the conversation. An hour later, David McMurray, a Madison Chamber of Commerce board member, sent a complaint to a Community Precinct Coordinator at MNPD after being notified of Venable's comments by David Luciana of Akron, Ohio, who had seen the posts. Venable was immediately decommissioned, meaning that his policing authority was temporarily suspended pending an investigation. Venable's squad car and police equipment were confiscated that same afternoon, and a press release was issued that stated:

Officer Venable Decommissioned; Under Investigation for Facebook Post

July 7, 2014

FOR IMMEDIATE RELEASE

Chief Steve Anderson this afternoon directed that Hermitage Precinct midnight shift Officer Anthony Venable be immediately decommissioned pending the results of an internal investigation into a post he made from his personal Facebook account referencing the police-involved shooting in Falcon Heights, Minnesota.

Hermitage Precinct supervisors became aware of the post at 3 p.m., in which Venable, during a Facebook conversation wrote, "Yeah. I would have done 5," an apparent reference to the number of shots in the Minnesota case. When questioned by a supervisor late this afternoon, Venable acknowledged the post, but said it was a form of sarcasm directed at a person with whom he was electronically conversing on Facebook.

The Office of Professional Accountability has began an investigation into the specific posting and Venable's Facebook conversation.

(Doc. No. 1, Complaint ¶ 13).

The same day as Venable's postings, MNPD Chief Steve Anderson issued a press release regarding the Baton Rouge and Falcon Heights shootings. Chief Anderson asked Nashville not to judge MNPD officers based on the actions of other police departments, and to believe in the MNPD. Chief Anderson also noted that MNPD officers are trained to de-escalate situations and not to use deadly force unless absolutely necessary, and only as a last option.

As Venable's posts were spreading on the internet, MNPD learned that a vigil was going to take place in Nashville on the Courthouse lawn. In order to stave off a potential protest that could turn violent or destructive, Metro held a prayer service in front of the Criminal Justice Center where clergy members, politicians, judges, police officers, and members of the community called for calm in Nashville, and prayed for the police officers who were ambushed in Dallas, Texas that led to the loss of five officers' lives. The prayer service was held on July 8, 2016, the day after Venable posted on Facebook.

Metro asserts that Venable's Facebook comments were widely shared on the internet, reaching places as diverse as the United Kingdom, Miami Florida, and Memphis, Tennessee. Venable disputes this, claiming that his actual posts were not shared. Instead, an individual named Ed Austin, who Venable did not know, created a composite utilizing screenshots of (1) Venable's Facebook page, (2) two comments from the Facebook conversation of July 7, 2017 in which Venable said, "Yeah. I would have done 5"; and (3) a picture of Venable and Chief Anderson when Venable was named "Officer of the Year." (Doc. No. 24 at 8-9). Nevertheless, Venable concedes this "manipulated" post was shared on the internet over 125 times. He also concedes that in the context of the composite created by Austin, the comments could be taken negatively by both his co-workers and the MNPD, although he believes that his comments were not unprofessional because they were meant to be sarcastic.

Venable was charged with conduct unbecoming an officer. He was dismissed effective February 15, 2017, based upon the following charge:

Charge #1

MNPD Manual 4.20.040 Deportment and Personal Appearance

Personal Behavior: D. Conduct Unbecoming an Employee of the Department

1. The conduct of department employees, on- or off-duty, may reflect directly or indirectly upon the Department, therefore, a police department employee's ability to perform his or her duties is dependent upon the respect and confidence communities have for the representatives of the law enforcement agency generally.

2. A police officer is the most conspicuous representative of government, and to the majority of the people, is a symbol of stability and authority upon whom they can rely. An officer's conduct is closely scrutinized, and when the officer's actions are found to be excessive, unwarranted, or unjustified, they are criticized far more severely than comparable conduct of persons in other walks of life.

3. Employees shall at all time conduct themselves in a manner which does not bring discredit to themselves, the Department, or the City.

The comment you posted on Facebook, "Yeah. I would have done five" reflected negatively on the department and its members and did not protect the department's reputation. This incident created a disruption in the workplace which not only affected the Metropolitan Nashville Police Department, but also Metro Government as a whole.

(Doc. No. 17-1, at 383-83) (emphasis in original).

Venable appealed his dismissal to the Civil Service Commission ("Commission"), and the matter was heard by Administrative Law Judge ("ALJ") Steve Darnell on November 14, 2017. On December 28, 2017, ALJ Darnell entered an Initial Order determining that Venable's conduct warranted a thirty (30) days suspension, and recommended that Venable be reinstated. (Doc. No. 17-1 at 12). Ultimately, after some procedural wrangling that is unnecessary to now recount, the Commission entered a Supplemental Final Order effectively vacating the Administrative Law Judge's Initial Order and finding that termination of Venable's employment as a MNPD officer was warranted, thereby reinstating the decision of the Chief Anderson to terminate Venable. While this action was pending, Venable dismissed a Chancery Court action that he had filed in relation to the treatment he received by the MNPD.¹

During the same general time period as Venable's postings, another police officer was disciplined because of his actions on Facebook. Specifically, in July 2016 – around the time that five white officers were killed in Dallas by an African-American man – Officer Chris Taylor, an African- American, posted a picture of Bobby Seale and Huey Newton, the co-founders of the Black Panther Party, as his Facebook profile picture. Officer Taylor received a 10-day suspension relating to this post, and no press release was issued about the incident. Taylor had never received any such prior discipline. Venable, on the other hand, was suspended for 16 days for conduct unbecoming an...