FOR THE FOURTH CIRCUIT - Citizen

Case: 07-1184 Document: 93 Date Filed: 04/02/2009 Page: 1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL ANDREW,

Plaintiff-Appellant,

v.

KEVIN P. CLARK (In his personal capacity); LEONARD HAMM, Baltimore Police Commissioner (In his personal and official capacity); BALTIMORE POLICE DEPARTMENT; KENNETH BLACKWELL, Deputy Police Commissioner,

Defendants-Appellees.

No. 07-1184

NATIONAL FRATERNAL ORDER OF POLICE; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC CITIZEN, INC.; THE AMERICAN CIVIL LIBERTIES UNION OF MARYLAND; GOVERNMENT ACCOUNTABILITY PROJECT; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,

Amici Supporting Appellant.

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ANDREW v. CLARK

MICHAEL ANDREW,

Plaintiff-Appellant,

v.

KEVIN P. CLARK (In his personal capacity); LEONARD HAMM, Baltimore Police Commissioner (In his personal and official capacity); BALTIMORE POLICE DEPARTMENT; KENNETH BLACKWELL, Deputy Police Commissioner,

Defendants-Appellees.

No. 07-1247

NATIONAL FRATERNAL ORDER OF POLICE; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC CITIZEN, INC.; THE AMERICAN CIVIL LIBERTIES UNION OF MARYLAND; GOVERNMENT ACCOUNTABILITY PROJECT; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,

Amici Supporting Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cv-03772-AMD)

Argued: January 27, 2009

Decided: April 2, 2009

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ANDREW v. CLARK

3

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and Arthur L. ALARC?N, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit,

sitting by designation.

Vacated and remanded in part and affirmed in part by published opinion. Senior Judge Alarc?n wrote the opinion, in which Chief Judge Williams joined. Judge Wilkinson wrote a separate concurring opinion.

COUNSEL

ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for Appellant. Bonnie Ilene Robin-Vergeer, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Amici Supporting Appellant. William Rowe Phelan, Jr., BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. ON BRIEF: Karen Stakem Hornig, Chief Legal Counsel, Office of Legal Affairs, BALTIMORE POLICE DEPARTMENT, Baltimore, Maryland; George A. Nilson, City Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. Larry H. James, Christina L. Corl, Lindsay L. Ford, CRABBE, BROWN & JAMES, L.L.P., Columbus, Ohio, for National Fraternal Order of Police, Amicus Supporting Appellant.

OPINION

ALARC?N, Senior Circuit Judge:

Michael Andrew appeals from the district court's order granting the Defendants' motion to dismiss this 42 U.S.C. ? 1983 civil rights action for failure to state a claim pursuant

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ANDREW v. CLARK

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Andrew named as defendants two former Baltimore Police Department ("BPD") police commissioners and a BPD deputy police commissioner. Andrew contends that the district court erred in determining that the allegations in his complaint did not demonstrate that the Defendants violated his First Amendment right to freedom of speech by retaliating against him for releasing an internal memorandum ("Andrew Memorandum") to a reporter for the Baltimore Sun. In his memorandum, Andrew requested that an investigation be conducted to determine whether the use of deadly force by a tactical unit of the BPD against a barricaded suspect was justified and properly conducted. Andrew argues that the retaliation was improper because as a citizen, he has a First Amendment right to speak about a matter of public concern. The district court concluded that Andrew's Memorandum was not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), because it "never lost its character as speech pursuant to his official duties simply by virtue of the wider dissemination he elected to give it after his recommendations were ignored by the police commissioner." Andrew v. Clark, 472 F. Supp. 2d 659, 662 n.4 (D. Md. 2007).

We vacate the district court's order dismissing this action and remand for further proceedings because Andrew has alleged facts in his second amended complaint that could entitle him to relief on his First Amendment claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007) ("[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.").

For the reasons discussed below, we also hold that the district court erred in dismissing Andrew's petition and procedural due process claims. We affirm the denial of Andrew's motion for partial summary judgment, and the denial of his motion for fees and costs incurred in effectuating service on Defendant Kevin P. Clark.

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ANDREW v. CLARK

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I

Because the district court dismissed this action pursuant to Rule 12(b)(6), we treat each of the allegations in the second amended complaint as true. See Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 367 (4th Cir. 1998) ("We review a dismissal for failure to state a claim de novo, drawing all reasonable inferences in favor of the plaintiff and accepting the allegations that are stated in the complaint as true.").

Andrew was employed by the Baltimore Police Department from June 1973 until his employment was terminated in September 2004. At the time of his termination, Andrew served as a Major, a command level rank.

On or about December 8, 2003, an elderly man named Cephus Smith killed his landlord over a rent increase and barricaded himself in his apartment. Andrew was the commander of the Eastern District of the BPD and responded to the barricade situation. There were four commanders at the scene of the barricade. The senior officer was Colonel Carl Gutberlet. Andrew's only duty at the crime scene was to supervise the officers assigned to perimeter street control. Andrew requested that a Technical Assistance Response Unit ("TARU") look inside the suspect's apartment to gain additional intelligence. He also instructed the BPD officers to continue their attempts to negotiate with the suspect. TARU officers under the command of another BPD official arrived at the scene. The unit entered the suspect's apartment and shot and killed the suspect (the "Smith shooting").

Following the Smith shooting, Andrew repeatedly asked that the BPD include him in a review and investigation of the shooting given the fact that there were no hostages and no evidence that the suspect intended to commit further violence from within his apartment. Despite his requests, Andrew was not included in any BPD investigation of the Smith shooting.

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