Baltimore police commander settles whistle-blower lawsuit

Decision protects whistle-blowers, lawyer says

May 14, 2010|By Peter Hermann, The Baltimore Sun

A Baltimore police commander who leaked a memorandum to The Baltimore Sun critical of a fatal police shooting has collected a settlement from the city, bringing an end to a lengthy legal case that advocates say represents a victory for government whistle-blowers.

City Solicitor George N. Nilson said he agreed to end the case after Lt. Col. Michael J. Andrew won a decision from the U.S. Court of Appeals for the 4th Circuit, which ruled last year that the officer couldn't be punished because he was speaking as a private citizen and about "concerns for public safety."

One judge, J. Harvie Wilkinson III, wrote that government scrutiny by the news media "is impossible without sources such as Michael Andrew" and that "it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view."

He wrote that to dismiss Andrew's complaint "would have profound adverse effects on accountability in government."

Andrew was briefly fired as a district commander after leaking the memo, and he said the settlement allows him to collect a lost $45,000 stipend, along with $70,000 in attorney's fees. Completed in November, the arrangement was made public Thursday night during a City Council hearing on the Police Department's budget.

The court ruling, coupled with the city's decision to forgo an appeal, leaves intact a precedent that "provides great legal protection to government whistle-blowers," said Andrew's attorney, Howard B. Hoffman, who pursued the case for nearly six years. "It's good news that honesty and integrity in government was protected."

Groups as varied as the American Civil Liberties Union, the National Fraternal Order of Police, the Government Accountability Project and the Reporters Committee for Freedom of the Press joined to support Andrew.

Nilson declined to speculate on whether the decision by the appeals court, generally regarded as conservative-leaning but which has been evolving with the appointment of judges by President Barack Obama, was "precedent-setting or revolutionary." But he did say that "it certainly did have an effect on the right of public safety employees to exercise their perceived First Amendment rights."

The city attorney added, "I'd like to think that we don't violate our officers' First Amendment rights. We certainly don't discharge people for innocent First Amendment exercises. But not every speaking out is an appropriate First Amendment exercise."

Andrew, a 37-year department veteran, remains on the force, having just been promoted from the property division to head of the special operations section, which includes the marine and aviation units and the SWAT team.

City Councilwoman Belinda Conaway singled out Andrew in remarks Thursday critical of the number of lawsuits the city has had to settle on behalf of the Police Department, saying payouts are "costing the city millions in unbudgeted revenue."

Andrew, who was in the council chambers with the rest of the command staff, said he was offended by Conaway's statements and considered walking out of the room, but he decided not to embarrass the police commissioner.

"In my opinion, it was uncalled for and a disgrace," Andrew said. "What does that have to do with the budget?"

Andrew said he does not regret making public his memo about the shooting in 2003 of Cephus Smith, and that he understood the consequences if caught. "I knew what I was doing," he said. "I went in with my eyes open. And I'd do it all over again."

In January 2004, Andrew secretly handed a memo to a Sun reporter describing his concerns about a police raid on East Oliver Street during which tactical officers fatally shot Smith, a 78-year-old who had just killed his apartment manager in a dispute and had barricaded himself in a room.

Andrew, who was then commander of the Eastern District, wrote to then-Police Commissioner Kevin P. Clark that he felt the tactical team prematurely raided the apartment and should have negotiated further before storming inside.

"I still have a problem with the killing," he said in an interview. "To this day, we have never critiqued that incident. We never should have breached that door."

Clark determined that Andrew had leaked the memo to a reporter who wrote a front-page story. Clark ordered Andrew to retire, then reinstated him but banished him to work in a basement office where evidence is catalogued and kept. He stayed in the property division for years.

Andrew sued in U.S. District Court in Baltimore, but Judge Andre M. Davis, who has since joined the 4th Circuit court, threw out the case, deciding that Andrew had violated department rules against speaking to reporters and handling internal police documents. The judge said that Andrew did not enjoy free-speech protection because his high-ranking position in the department meant that reviewing shootings was part of his job.

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