Police Officer_Small.JPGThe “blue wall” is a phrase sometimes used to refer to an unofficial practice of police officers protecting or shielding the wrongdoing of a fellow officer.  In an interesting twist, one police officer claimed that when his department placed him on paid administrative leave and then failed to afford him the “professional courtesy” of intervening in a criminal investigation by another agency, it thereby discriminated against him and failed to afford him equal protection under the law.  Not buying it? Fortunately, neither did  the Second Circuit of the U.S. Court of Appeals. (Brown v. City of Syracuse.)

Curtis Brown was a police officer for the Syracuse, New York Police Department (“SPD”).  In 1999, based upon an allegation that Brown was involved in an inappropriate relationship with a 15-year-old girl, a Captain investigated and determined the complaint was unfounded. The Captain, however, ordered Brown to have no further contact with the girl.

Several months later, the girl contacted Brown, claiming she was distraught over a fight with her mother and had left home. The girl asked Brown to pick her up because she did not feel safe alone. Brown picked up the girl and rented a hotel room for her to stay.  The girl’s mother discovered the girl’s location and that the room had been rented in Brown’s name.  State police were called who then contacted SPD.  When asked about the girl’s whereabouts by an SPD officer, Brown stated he did not know where the girl was and denied renting her the room.   The next day, Brown similarly denied knowing of the girl’s whereabouts when asked by a SPD Captain, even though Brown had just given the girl a ride to school.  The Chief ordered Brown suspended with pay pending an investigation.

The State Police began an investigation and asked SPD if they wanted to assist. SPD declined because the girl lived outside city limits.  The State Police charged Brown with endangering the welfare of a child. Brown pled guilty to one misdemeanor count.  This resulted in automatic loss of his status as a peace officer under New York law and thus, his employment with SPD.

Brown filed suit against SPD on several grounds including race discrimination in violation of Title VII of the Civil Rights Act and a claim under 42 U.S.C. §1983 alleging a violation of his Constitutional right to Equal Protection under the Fourteenth Amendment.  After a series of orders and appeals, the district court ultimately granted summary judgment in favor of SPD and other defendants.  Brown appealed and the Court of Appeals affirmed. 

Brown claimed that the SPD had discriminated against him based on his race (African-American) by suspending him with pay pending an investigation when SPD did not take the same action against Caucasian officers who had engaged in similar misconduct.  In relying on earlier precedent the Court noted that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action.”  The question was whether the employer simply applied reasonable disciplinary procedures or if it exceeded those procedures and thereby changed the terms and conditions of employment.

“Paid suspension during an investigation could thus potentially be adverse if the employer takes actions beyond an employee’s normal exposure to disciplinary policies.”

Brown argued that the loss of overtime pay was “more” than a mere paid administrative leave that exceeded the City’s policies.  The Court disagreed, holding that such a finding would be “absurd.”  Brown further argued that white officers accused of worse conduct were allowed to stay on the job.  However, Brown offered no evidence of a similarly-situated white officer who was not suspended pending an investigation.

Brown next argued that his right to Equal Protection under the law was violated when the SPD refused to extend him the same “benefits and privileges” extended to white officers.  Brown alleged he should not have been investigated in the first place and, in any event, the SPD should have become involved in his investigation and worked with the State Police and District Attorney to achieve a more favorable outcome for him.

The Court distinguished a prior published decision in which a department that investigated its own officer for criminal misconduct was found to have violated the officer’s Constitutional rights.  There, a deputy sheriff had voiced unpopular opinions about the sheriff’s office after which, three officers lay-in-wait surveilling the deputy while he had dinner with his wife.  After observing the deputy having a couple glasses of wine, the officers pulled the deputy over on his way home and charged him with DUI.  There, the court held that an Equal Protection claim was cognizable because the defendants sought out, surveilled, and investigated the deputy in a calculated attempt to punish him for his protected activity.

The distinction here, the Court held, was that Brown was not sought out and caught by discriminatory means.  Rather, Brown was merely denied the “blue wall of silence” or “professional courtesy” behind which he expected his fellow officers to mitigate or hide his misconduct.

 “…to recognize a constitutional violation here based on a failure to extend a ‘professional courtesy’ would create bizarre incentives encouraging officers to meddle in criminal investigations of a fellow officer’s misconduct in order to avoid being subject to liabilty. This ‘would stand the Equal Protection Clause on its head.’”

While an employer shoud apply all of its policies even-handedly, no employer is required to turn a preferential blind eye to the misconduct of its own employee.