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Karl A. Racine
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Court Dismisses Claims by Police Officers, Rules They Were Not Whistleblowers, Suffered No Retaliation

Wednesday, August 21, 2013

Ted Gest, Public Information Officer
[email protected]

WASHINGTON, D. C. – A judge has ruled against three Metropolitan Police Department (MPD) officers who claimed that they were the subjects of Internal Affairs investigations and denied potential leadership opportunities because they had “blown the whistle” about alleged wrongdoing relating to problems with Intoxilyzer instruments used by MPD to test blood alcohol levels of persons suspected of drunk driving.

D.C. Superior Court Judge Anthony C. Epstein yesterday referred to the officers’ contentions as “absurd,” “meritless,” and “perverse” in a 57-page dismissing the officers’ case in its entirety and entering summary judgment in favor of the District, three prosecutors in the Office of the Attorney General (OAG), and an Assistant Chief of Police who had been sued for alleged violations of the District of Columbia Whistleblower Protection Act. The case of Jose Rodriguez, et al., v. District of Columbia, et al., was filed in September, 2011 by lawyers who represent the Fraternal Order of Police.

The Court determined, after a detailed examination of all the evidence developed before trial, that the officers had never blown the whistle on any governmental wrongdoing. The Court found that the MPD and the OAG had acted properly in ceasing to use the Intoxilyzer machines upon learning that they were miscalibrated, and that none of the officers’ communications relating to those decisions constituted “whistleblowing.”

Further, the Court rejected the officers’ allegations that they had been instructed by OAG prosecutors to commit perjury. The court found that the OAG attorneys had acted properly in cautioning witnesses against providing inadmissible, irrelevant testimony. The Court determined that “no reasonable jury could conclude from the admissible evidence presented by the plaintiffs that any OAG prosecutor instructed any plaintiff to lie or mislead any judge or defendant or defense lawyer – or even that any plaintiff reasonably believed that any prosecutor had instructed them to lie or mislead anyone.”

The Court also rejected the notion that there had been any retaliation against any of the officers.  Judge Epstein found wholly legitimate and appropriate the Internal Affairs investigation into whether two plaintiffs had failed to follow MPD protocols when obtaining a urine sample from an allegedly drunk female driver. The Court found that the “investigation was objectively warranted” and that no retaliation occurred in either the methods or the conclusions of the investigation. Lastly, the Court rejected one plaintiff’s contention that OAG detained him in court to prevent him from testifying before the D.C. Council, given that he was a necessary governmental witness in three separate criminal prosecutions that day, that the officer had not followed normal procedures to request a continuance of those prosecutions, and that the witness had submitted written testimony to the Council and that two other officers had testified orally to the same effect..

As to the officers’ exclusion from potential leadership opportunities, the Court concluded that no evidence existed to suggest it was related to any supposed whistleblowing. Rather, the Court concluded that there were legitimate reasons for MPD’s decisions. Two officers had been excluded for consideration based on a pending Internal Affairs investigation into an allegedly improperly collected urine sample while the third was excluded based on the fact that he had been convicted of hit and run driving  and had failed to disclose the conviction when given the opportunity.

Both MPD and OAG praised the thoroughness and incisiveness of Judge Epstein’s decision.  Attorney General Irvin B. Nathan expressed his belief that the dismissal was “fully justified and well deserved, particularly for the individual defendants, who should never have been sued in the first place.” He also praised the work of the attorneys for the District who litigated the case, describing their efforts as “masterful.”  

Police Chief Cathy L. Lanier said, “This has been a long and arduous discovery process, in which both sides expended significant resources and effort. We are gratified that Judge Epstein examined the facts and vindicated the District of Columbia and all of its employees who were named as defendants.”

Chad Copeland, Melissa Baker, and Matthew Blecher were the Assistant Attorneys General representing the District of Columbia and the three OAG prosecutors. Assistant Attorney General Sarah Knapp represented the Assistant Chief of Police in charge of the Internal Affairs unit.  The officers and the FOP lawyers have thirty days to appeal the decision.