UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KRISTOPHER BAUMANN, Chairman of
The Fraternal Order of Police, Metropolitan
Police Labor Committee,
Civil Action No. 09-1189 (CKK)
Plaintiff,
v.
THE DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
(August 4, 2009)
Plaintiff Kristopher Baumann, the Chairman of the Fraternal Order of Police and an
Officer of the Metropolitan Police Department, brings this action against the District of
Columbia and Cathy L. Lanier, the Chief of the Metropolitan Police Department (collectively,
“Defendants”), alleging interference with Plaintiff’s First Amendment rights, retaliation based on
his whistle-blowing activities, and violation of D.C. Code § 5-333.04 (relating to investigations
and inquiries involving First Amendment activities). On July 11, 2009, the Court denied
Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunctive Relief, finding
that (1) Plaintiff had failed to demonstrate that he would suffer any irreparable harm absent
injunctive relief, and (2) the undeveloped factual record in this case prevented Plaintiff from
demonstrating a substantial likelihood of success on the merits of his claims. See [13] Mem. Op.
at 7-14 (Jul. 11, 2009).
Currently pending before the Court is Plaintiff’s [20] Second Motion for a Preliminary
Injunction, which Plaintiff has filed based on a few additional facts that have developed since the
Court issued its previous decision. After thoroughly reviewing the parties’ submissions, relevant
case law and statutory authority, and the entire record of the case as a whole, the Court concludes
that its initial findings remain unaffected by the few factual developments identified by Plaintiff.
Accordingly, the Court again finds (1) that Plaintiff has not shown that he would suffer any
irreparable harm absent injunctive relief, and (2) that the factual record remains undeveloped,
thereby preventing Plaintiff from demonstrating a substantial likelihood of success on the merits
of his claims. The Court shall therefore DENY Plaintiff’s [20] Second Motion for a Preliminary
Injunction, for the reasons that follow.
I. BACKGROUND
Plaintiff is the Chairman of the District of Columbia Fraternal Order of Police (“FOP”)
and an officer employed by the Metropolitan Police Department (“MPD”).1 Pursuant to Article 9
of the Collective Bargaining Agreement between the FOP and MPD (the “CBA”), Plaintiff is
assigned full-time to act as the primary union representative of the FOP. See Pl.’s First Mot., Ex.
2 at 6 (FY 2004-FY 2008 CBA).
This case has its origins in a “barricade” incident that occurred on May 30, 2009. Such
incidents are subject to various written procedures issued by the MPD. See Pl.’s First Mot., Ex. 1
at 1 (11/7/86 Barricade/Hostage Situation Procedures). Following this incident, the Vice-
Chairman of the FOP, Wendell Cunningham, contacted Plaintiff to report that several FOP
members raised concerns about the procedures that were used. Am. Compl. ¶ 8. In response,
Plaintiff ordered an investigation of the incident by the FOP Safety Committee, an entity that is
1
To provide the necessary context for Plaintiff’s Second Motion for a Preliminary
Injunction, the Court shall repeat a substantial portion of the factual summary from its July 11,
2009 Memorandum Opinion.
2
part of the Joint Safety Committee recognized under Article 17 of the CBA. Id.; Pl.’s First Mot.,
Ex. 2 at 18 (FY 2004-FY 2008 CBA).2
On June 5, 2009, Vice-Chairman Cunningham requested a taped copy of the radio
communications that occurred during the barricade incident. See Defs.’ First Opp’n, Ex. A at 1
(6/5/09 Documentation Receipt). In connection with this request, Vice-Chairman Cunningham
signed a form ensuring that the radio recordings would not be released to the public:
It is understood, the following recordings are for internal investigation only, there
are no public requests for any of these incidents and the recordings will not be
released to the public without prior, written approval from the Office of Unified
Communications.
Id. The form identified the “[r]equesting agency and [i]dentifier” as “MPD/ERT”.3 Id.
Defendants assert that the radio recordings could only have been released to Vice-Chairman
Cunningham in his capacity as a police officer and not as a union member, see Defs.’ Second
Opp’n at 8 (“neither a ‘Mr.’ Cunningham nor a ‘Citizen’ Baumann would have been authorized
to simply walk in and get radio run recordings from the Unified Communications Office”),
although neither party has identified any evidence in the record supporting or refuting this
assertion.
Within hours after the radio recordings were released to Vice-Chairman Cunningham,
Defendants state that “MPD received a telephone call from a reporter representing that he had
listened to the recording[s].” Defs.’ First Opp’n at 2. As a result, Chief Lanier ordered
Lieutenant Dean Welch to conduct an Internal Affairs investigation “to determine the
2
Vice-Chairman Cunningham oversees the FOP Safety Committee on behalf of Plaintiff.
Am. Compl. ¶ 8.
3
“ERT” is the MPD’s Emergency Response Team.
3
circumstances under which the recording[s] [were] released.” Id.
On June 17, 2009, Lieutenant Welch emailed Plaintiff and requested that he provide a
convenient date and time to schedule an administrative interview in connection with the
investigation:
Chairman/Officer Baumann, I need you to contact me in reference to scheduling
an interview concerning an administrative investigation I am conducting. Please
provide me with a date and time at your earliest convenience that you can respond
to [the Internal Affairs Division]. Thank you for your cooperation.
Pl.’s First Mot., Ex. 4 (6/17/09 Email from D. Welch to K. Baumann). Plaintiff received the
email while he was testifying as a witness on behalf of the FOP in an arbitration concerning an
“All Hands On Deck” initiative (“AHOD”), an apparent hot-button issue between MPD and the
FOP. Pl.’s First Reply, Ex. 3 ¶ 3 (Affid. of K. Baumann). Although Plaintiff repeatedly
contacted individuals within the MPD’s Labor and Employee Relations Unit to discuss
Lieutenant Welch’s email, he did not receive timely responses. See Pl.’s First Reply, Ex. 3 ¶¶ 5-
6, 8-9 (Affid. of K. Baumann).
On June 18, 2009, Plaintiff attended a meeting of the Ward 5 Republicans, where he was
invited to speak about crime-related issues in the District of Columbia. Id. ¶ 7. Plaintiff does not
dispute that this was a public meeting. Am. Compl. ¶ 17. At the meeting, Plaintiff claims (and
Defendants do not dispute) that a uniformed Lieutenant of MPD was present, and that the
Lieutenant told Plaintiff that he was on duty and had been ordered to “monitor” Plaintiff’s
remarks. Id.
On June 19, 2009, Plaintiff reported to an Internal Affairs interview with Lieutenant
Welch. Id. ¶ 19. Although the record remains somewhat unclear, it appears that Plaintiff refused
4
to respond to some or all of Lieutenant Welch’s questions on the grounds that they improperly
impinged on Plaintiff’s union activities and Plaintiff’s First Amendment rights. Id. ¶ 23
(“[Plaintiff] responded to these questions by asserting that he was, at all times, acting in his
capacity as Chairman of the FOP, and thus the questioning was improper”).
Plaintiff filed his First Motion for a Temporary Restraining Order and Preliminary
Injunctive Relief on June 29, 2009, seeking to enjoin Defendants’ Internal Affairs investigation
and Defendants’ “monitoring” of his speeches. The Court denied the Motion on July 11, 2009,
finding that “Plaintiff [was] unable to demonstrate any likelihood of irreparable harm because his
allegations of future harm [were] based on nothing more than speculation at this point and on this
record.” Mem. Op. at 8 (Jul. 11, 2008). The Court also found that “[t]he undeveloped factual
record” prevented Plaintiff from “show[ing] a substantial likelihood of prevailing on the merits
of his claims.” Id. at 11.
Plaintiff filed his Second Motion for a Preliminary Injunction on July 24, 2009, along
with an Amended Complaint that describes two new factual developments. First, Plaintiff
alleges that Defendants “stripped [him] of his police powers” on July 13, 2009, forcing him to
surrender his gun and badge “purportedly due to the fact that he missed a training session for
calendar year 2008.” Am. Compl. ¶ 27. Plaintiff does not allege that Defendants wrongly
accused him of missing this training session, nor does he allege that the order to surrender his
gun and badge violated an MPD policy. Plaintiff also fails to provide any additional information
concerning whether he subsequently attended the training session and/or whether his police
powers were thereafter restored.
Second, Defendants proceeded to interview Plaintiff in connection with the Internal
5
Affairs investigation on July 14, 2009. Id. ¶ 28. Lieutenant Welch advised Plaintiff that he was
under investigation for violating General Order 204.1, Part 6, Section A, Number 1, which relates
to the release of information to the news media. Id. ¶ 29. Plaintiff was advised that “his
employment may be terminated (1) as a result of the investigation, and (2) if he refused to answer
the investigator’s questions.” Id. ¶ 30. During this interview, Plaintiff “stated that he had
provided two news reporters with information regarding the May 30 barricade, including a 14-
minute portion of an audiotape of the scene.” Id.
Defendants filed an Opposition to Plaintiff’s Second Motion for a Preliminary Injunction
on July 29, 2009, arguing that “there are no materially changed circumstances here that would
warrant the entry of preliminary injunctive relief any more than existed when [P]laintiff made his
first motion which this Court denied.” Defs.’ Second Opp’n at 1. Plaintiff filed a Reply on July
31, 2009. Plaintiff’s Second Motion for a Preliminary Injunction is therefore fully briefed and
ripe for decision.4
II. LEGAL STANDARD
The standard for obtaining injunctive relief through either a temporary restraining order
or a preliminary injunction is well established. A moving party must show: (1) a substantial
likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction
were not granted, (3) that an injunction would not substantially injure other interested parties,
and (4) that the public interest would be furthered by the injunction. Chaplaincy of Full Gospel
4
Defendants also filed a Motion to Strike the second exhibit attached to Plaintiff’s Reply.
Because the Court finds that the exhibit is irrelevant to the issues currently before the Court, and
because this Memorandum Opinion does not rely on any aspect of the exhibit or the parties’
arguments related to the exhibit, the Court shall GRANT Defendants’ [24] Motion to Strike.
6
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006); Hall v. Daschle, 599 F. Supp. 2d 1, 6
n.2 (D.D.C. 2009) (“[t]he same standard applies to both temporary restraining orders and to
preliminary injunctions”). In applying this four-factored standard, district courts may employ a
sliding scale as to which a particularly strong showing in one area can compensate for weakness
in another. Id. (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747
(D.C. Cir. 1995)). Nevertheless, both the United States Supreme Court and the Court of Appeals
for the D.C. Circuit have emphasized that a plaintiff must show at least some likelihood of
irreparable harm in the absence of an injunction. See Winter v. Nat. Res. Def. Council, Inc., __
U.S. __ , 129 S. Ct. 365, 375 (2008) (holding that a plaintiff must “demonstrate that irreparable
injury is likely in the absence of an injunction,” and not a mere “possibility”); CityFed, 58 F.3d at
747 (holding that a plaintiff must demonstrate “‘at least some injury’ for a preliminary injunction
to issue . . . [because] ‘the basis of injunctive relief in federal courts has always been irreparable
harm . . . .’” (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)).
III. DISCUSSION
Plaintiff’s First Motion for a Temporary Restraining Order and Preliminary Injunctive
Relief sought to enjoin Defendants’ Internal Affairs investigation and the “monitoring” of
Plaintiff’s speeches. The Second Motion for a Preliminary Injunction focuses exclusively on the
investigation. Plaintiff argues that “[i]t can no longer be said that the threat of Plaintiff losing his
job in retaliation for protected speech is speculative; therefore, Plaintiff seeks this Court’s
intervention before he is unlawfully terminated from his employment.” Pl.’s Second Mot. at 3.
The Court disagrees with Plaintiff.
As an initial matter, the parties continue to dispute the nature of the Internal Affairs
7
investigation. Plaintiff argues that the investigation is focused on his disclosure of the radio
recordings to the media, which he undertook in his capacity as Chairman of the FOP and not as a
police officer. According to Plaintiff, “the MPD has plainly stated that it is Plaintiff’s protected
speech – his release of information and an audiotape segment to the media – that has placed him
in jeopardy of termination of employment or other discipline.” Pl.’s Second Mot. at 11.
Defendants dispute this characterization. While conceding that Plaintiff’s various
criticisms to the press concerning the barricade incident constitute “protected speech,”
Defendants emphasize that they “are not investigating the conversations [P]laintiff had with the
press or statements he made to the public.” Defs.’ Second Opp’n at 10. Rather, Defendants
explain that Vice-Chairman Cunningham requested the radio recording in his capacity as a police
officer. See Defs.’ First Opp’n, Ex. A at 1 (6/5/09 Documentation Receipt) (identifying the
“[r]equesting agency and [i]dentifier” as “MPD/ERT”); Defs.’ Second Opp’n at 8 (“neither a
‘Mr.’ Cunningham nor a ‘Citizen’ Baumann would have been authorized to simply walk in and
get radio run recordings from the Unified Communications Office”). In their view, the
investigation will determine whether Vice-Chairman Cunningham and/or Plaintiff were acting in
official police capacities when one or both obtained and/or released the recordings. See Defs.’
Second Opp’n at 8 (“the prohibition on further dissemination would not have applied to
[P]laintiff, so long as he was receiving the recording as a police officer,” and questioning
whether Plaintiff received the recordings in his capacity as a police officer but released them in
his capacity as a union official). Thus, Defendants characterize the investigation as limited to
“the circumstances under which the recording [that] Officer Cunningham obtained, upon
condition [that] it not be further disseminated without written authorization, was improperly
8
released.” Id. at 3.
The parties’ disagreement as to how best to characterize the investigation reflects the
larger issue that the investigation has not been completed, and therefore no findings or
recommendations have been made relating to Plaintiff or anyone else. The Court previously
described this factual uncertainty in its July 11, 2008 decision:
Plaintiff’s argument assumes that the investigation, if it continues, will (1) result
in a finding that he engaged in wrongdoing and (2) that he will be subject to
disciplinary action that will prevent his continuing service as Chairman of the
FOP. The Court finds no basis in the record to make those assumptions, nor to
reach any other conclusions as to what ‘may’ occur ‘if’ the investigation
continues.
Mem. Op. at 9 (Jul. 11, 2009). Defendants correctly emphasize how little has changed, noting
that “[t]he investigation on this matter is still not complete. No finding of misconduct on the part
of [P]laintiff has been made. No discipline has been proposed as to [P]laintiff . . . .” Defs.’
Second Opp’n at 5. At bottom, “no adverse action has been taken, or even proposed against
[Plaintiff].” Id. at 6.
Beyond the speculative proposition that Plaintiff will be terminated as a result of the
investigation, Defendants have submitted uncontroverted evidence that there are multiple types
of discipline that could be imposed based on the investigation, and that Plaintiff would have an
opportunity to pursue several layers of due process prior to imposition of any disciplinary action.
See Defs.’ Second Opp’n, Ex. 1 ¶ 4-15 (7/29/09 Decl. of M. Anzallo). Significantly, this
evidence establishes that Plaintiff’s termination is far from certain and, even if termination were
recommended as a form of discipline, Plaintiff would have weeks (if not months) to seek the
Court’s intervention (assuming there were an appropriate legal basis for such action). While
9
Plaintiff emphasizes that he was told “that his employment may be terminated [] as a result of the
investigation,” Pl.’s Second Mot. at 2 (emphasis added), Defendants appear to have advised him
of the potential consequences resulting from the investigation, but plainly did not advise him that
he was going to be terminated.
For these reasons, Plaintiff misses the mark with his blithe assertions that “the threat of
Plaintiff losing his job” is no longer “speculative,” Pl.’s Mot. at 3, and “[t]here is nothing more to
investigate about how the [radio recording] was released.” Pl.’s Reply at 3. Defendants have
issued no findings pursuant to the investigation and have made no recommendation as to any
discipline to be imposed on Plaintiff or anyone else. The Court shall not fill in these blanks with
Plaintiff’s speculation. As previously explained, injunctive relief is unwarranted where
irreparable harm is only a mere possibility. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674
(D.C. Cir. 1985) (per curiam) (holding that irreparable harm is shown only where a plaintiff’s
injury is “both certain and great” rather than “theoretical”) (internal citation omitted); Taylor v.
Resolution Trust Corp., 56 F.3d a1497, 1508 (D.C. Cir. 1995) (“[w]ithout adequate proof of a
threatened injury, plaintiff lacks . . . an adequate basis in equity for an injunction”). Cf. Mills v.
District of Columbia, 2009 U.S. App. LEXIS 15324 at *7 (D.C. Cir. Jul. 10, 2009) (finding that
the record supported the plaintiff’s likelihood of success on the merits and a finding of
irreparable harm related to a D.C. police checkpoint program, and explaining that “MPD Police
Chief Cathy Lanier stated that she would continue to utilize [the checkpoints] ‘until a judge
orders [her] to stop’”). The Court therefore continues to find that Plaintiff has failed to establish
any likelihood of irreparable harm in the absence of injunctive relief at this point and on this
record.
10
The Court, once again, also finds that the undeveloped record prevents Plaintiff from
establishing a likelihood of success on the merits of his claims. For example, the scope of First
Amendment protection afforded to Plaintiff’s speech depends on “whether [he speaks] as a
citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Here,
Defendants assert that one purpose of the investigation is to determine in what capacity Plaintiff
received and then disclosed the radio recordings to the press. See Defs.’ Second Reply at 9 (“The
investigation . . . is intended to determine how the radio recording, requested officially by the
ERT and collected by Officer Cunningham clearly in his capacity as a member of the ERT, was
released to the public. Once the facts are known, the MPD will determine whether, in its view[,]
official action is warranted”).5 Only after the investigation is complete will it be known whether
Plaintiff is facing discipline for speaking on a matter of public concern as a citizen and not as a
police officer.6
The Court also cannot find, on this record, that Plaintiff is likely to prevail on the merits
of his whistleblowing claim for two reasons. First, the Internal Affairs investigation does not
5
Plaintiff separately raises a “compelled disclosure claim” on the basis that he “was
compelled to disclose information regarding his actions as Chairman of the union.” Pl.’s Second
Mot. at 12. Because Plaintiff makes no showing that he will be compelled to disclose future
information concerning his FOP activities, his compelled disclosure claim provides no basis to
award injunctive relief (which requires the threat of future harm, not harm that has already
occurred). In any event, because the investigation has not yet resulted in any findings, including
those associated with the capacity in which Plaintiff acted when receiving and then disclosed the
radio recordings, the Court finds that this allegation does not provide a basis for injunctive relief.
6
None of the cases cited by Plaintiff suggest a different result. See, e.g., FOP v. Rubin,
26 F. Supp. 2d 133 (D.D.C. 1998) (holding, under pre-Garcetti precedents, that the defendants
failed to show that the release of a videotape had a “necessary impact on the actual operation of
the government,” where there was no dispute that the officers were acting as citizens when they
spoke on a matter of public concern).
11
appear to involve a protected disclosure because the Whistleblower Protection Act protects
statements made to a supervisor or a public body, not the press. D.C. Code § 1-615.52(6), (7).
Plaintiff concedes as much. See Pl.’s Reply at 8 (“Plaintiff’s whistleblower claim is not defined
by the focus of Defendant’s Internal Affairs investigation. Rather, Plaintiff asserts that the
Internal Affairs investigation is retaliation for Plaintiff’s [protected disclosures]”) (emphasis in
original). Second, with respect to Plaintiff’s “other” protected disclosures, the Court has already
explained that Plaintiff must show that he is subject to retaliation “because of” his protected
speech. See Mem. Op. at 11 (Jul. 11, 2009); D.C. Code § 1-615.53 (prohibiting retaliation
“because of the employee’s protected disclosure”). Plaintiff cannot demonstrate this factual
nexus on the present record. See Mem. Op. at 11-12 (Jul. 11, 2009).
With respect to Plaintiff’s remaining claim brought under D.C. Code § 5-333.042 (policy
on investigations and inquiries involving First Amendment activities), the Court cannot find that
Plaintiff is likely to prevail on this claim because it appears that no private right of action exists
under the statute. Defendants argue that this statute “was designed to set standards for the MPD,
not to create a new private cause of action,” Defs.’ Second Opp’n at 7, and Plaintiff does not
argue otherwise – suggesting only that it would be a matter of first impression. See Pl.’s Second
Reply at 10. Even if Plaintiff were correct in this regard, both parties should have provided a far
more in depth briefing than what is presented to the Court, as their filings have eschewed legal
analysis or citations to any legal authority. Notwithstanding this lack of briefing, it appears based
on the Court’s analysis that implying a cause of action in this statute is inappropriate because it
sets standards of conduct but provides no indication that a private right of action was intended.
See Coates v. Elzie, 768 A.2d 997, 1001 (D.C. 2001) (describing the legal analysis “relevant to
12
the question of whether a state law creates an implied cause of action”). Finally, the Court also
finds that the undeveloped factual record prevents Plaintiff from demonstrating that Defendants
are investigating First Amendment activities as opposed to a violation of an internal MPD
regulation by Plaintiff or any other individual.
Based on the foregoing, the Court again finds that Plaintiff has not established a
substantial likelihood of success on the merits at this point and on this record. Because the Court
also finds that Plaintiff has not demonstrated that he will suffer irreparable harm absent
injunctive relief, no balance of interests could warrant injunctive relief under these
circumstances.7 Accordingly, the Court shall deny Plaintiff’s Second Motion for a Preliminary
Injunction.
Two issues remain. First, Plaintiff includes a three-sentence argument on page 10 of his
Second Motion for a Preliminary Injunction seeking to have the Court declare the MPD’s
General Order 204.01 (relating to its media policy) unconstitutional on its face. See Pl.’s Second
Mot. at 10. Plaintiff’s Amended Complaint did not plead this as a claim, alluding to it only in
one sentence in paragraph 44 of the Amended Complaint, and failing to request any declaratory
or other relief associated with this supposed “claim.” The Court declines to rule on the
constitutionality of an MDP policy based on such cursory briefing in the context of a Second
7
Plaintiff asserts that he has been deprived of First Amendment freedoms, Pl.’s Second
Mot. at 16, and that various harms will befall him or others in the absence of injunctive relief, id.
at 17. These arguments do not weigh in favor of injunctive relief because they rely on the same
speculation that has led the Court to conclude that injunctive relief is unwarranted. The Court
previously found, and continues to find, that “the public interest is best served by allowing the
MPD’s Internal Affairs investigation as to the alleged unauthorized release of the radio
recordings to the news media to be completed . . . [and that] Defendants have a similar and
substantial interest in ensuring that its internal rules are followed.” Mem. Op. at 14 (Jul. 11,
2009).
13
Motion for a Preliminary Injunction. If Plaintiff wants to seriously pursue such a claim, he must
include the claim in his Complaint (presumably in the context of declaratory relief), and provide
more fulsome briefing in an appropriate context.8
Second, the Court notes the parties’ increasingly hostile tone toward each other reflected
in their filings. Defendants correctly emphasize that Plaintiff should have consulted with them
prior to filing his Second Motion for a Preliminary Injunction, see Local Civil Rule 7(m)
(requiring consultation prior to the filing of any non-dispositive motion), particularly where, as
here, a motion seeking emergency relief was filed late on a Friday during the summer month of
July. Even if the Local Civil Rules did not require such consultation, professional courtesy
would suggest that notice should have been provided to Defendants. The Court advises counsel
for both parties that, going forward, they are expected to demonstrate civility toward each other
and fully comply with the Local Civil Rules at all times. The Court shall consider sanctions if
counsel are unable or unwilling to meet these basic standards.
IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Plaintiff’s [20] Second Motion for
a Preliminary Injunction. An appropriate Order accompanies this Memorandum Opinion.
Date: August 4, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
8
A constitutional challenge is also premature at this stage of the litigation because the
Internal Affairs investigation has not found Plaintiff culpable for violating this or any other MPD
policy. The Court shall not simply assume that Defendants will subject Plaintiff to discipline
under this provision in order to rush headlong into the issue of the policy’s constitutionality.
14