Federal judge dismisses white officers’ lawsuit against city, former manager

by Jordan Green

Former City Manager Mitchell Johnson, who was fired in 2009, has become a nearly forgotten casualty of turmoil in the Greensboro Police Department. (file photo) A federal judge has dismissed a lawsuit filed by two Greensboro police officers against former City Manager Mitchell Johnson, a number of other employees, an outside investigative agency and the city itself. US District Judge Thomas Schroeder dismissed with prejudice claims filed by Officer Scott Sanders and Sgt. Tom Fox for racial discrimination, Fourth Amendment violations and conspiracy in an Aug. 26 judgment. The plaintiffs have the option of filing an appeal in the Fourth Circuit Court. Schroeder declined to consider other claims based on alleged state law violations for malicious prosecution, abuse of process, negligence, defamation and civil conspiracy, and the plaintiffs are free to file a new lawsuit in state court. “We’re disappointed and we don’t agree with the decision,” said John Vermitsky, a lawyer who represents the two police officers. He indicated that his clients are considering appealing the decision, and seeking justice through the state courts. Sanders and Fox, who are identified in the lawsuit as white, were assigned to the special intelligence unit under former Chief David Wray that carried out numerous investigations against black officers including James Hinson and Julius Fulmore. Allegations of racially motivated activities by the unit led to an investigation by the city legal department and an outside agency, Risk Management Associates, to investigate the police department. Then City Manager Johnson suspended Wray’s hiring and firing authority and then locked him out of his office after receiving Risk Management Associates’ report. Rather than respond to the allegations in the report, Wray resigned in January 2006. A subsequent investigation by the State Bureau of Investigation led to indictments against Sanders and Fox. Sanders was acquitted on one charge by a Guilford County jury in early 2009, and state prosecutor Jim Coman opted to drop all remaining charges against the two. A narrow majority of city council, including Councilwoman Mary Rakestraw, Councilwoman Trudy Wade and Councilman Zack Matheny, along with former members Mike Barber and Sandra Anderson Groat, voted to fire the city manager soon afterwards. Johnson now works in administration at GTCC. Judge Schroder found that Sanders and Fox’s claim of racial discrimination lacked enough substantiation to justify going forward with discovery. “Plaintiffs’ only factual allegations involving race are that black GPD officers leveled accusations of racist conduct against Wray and several white officers, particularly plaintiffs, that these accusations were untrue, and that the accusations triggered everything that followed, including several investigations of plaintiffs’ alleged activities and ultimately criminal charges against plaintiffs,” Schroeder said in a memorandum opinion accompanying the order. “Plaintiffs urge the court to infer from this that all alleged actions of Johnson (and through him, the city) were motivated by plaintiffs’ race. The plausible inference supported by these allegations, however, is that Johnson’s alleged actions were motivated not by plaintiffs’ race, but by plaintiffs’ alleged racism.” Schroeder continued, “While there may be situations where an employer acts improperly in investigating claims of racism, it would be incongruous to hold that where an employer aggressively investigates and addresses allegations of workplace discrimination that ultimately prove unfounded, the employees investigated may state their own claim for racial discrimination without any additional specific fact and armed only with speculation that the employer initiated and conducted the investigations in bad faith and with ulterior motives.” The judge cited an opinion by the First Circuit Court in the case of Dartmouth Review vs. Dartmouth College in 1989: “If every such investigation could be sidetracked by the accuseds’ cries of racism, the cause of racial equality would be unfairly burdened.” Schroeder noted in his memorandum that “employers may be held liable if, once alerted to discrimination in the workplace, they fail to investigate or address it.” Schroeder has been presiding over a number of federal claims spawned by the Greensboro police controversy, including a complaint filed by former Chief Wray against the city and Johnson; a claim filed by numerous black officers against the city, Wray and Councilwoman Wade; and a separate claim filed against the city by Fulmore. An initial pretrial conference is scheduled for the parties involved in the Fulmore suit at the US Post Office Building in Durham on Sept. 21. Schroeder dismissed a claim in Fulmore’s lawsuit earlier this summer that Johnson and the city council at the time “condoned and or [sic] were deliberately indifferent to the discriminatory acts and the official polices, widespread customs and practices implemented by Wray and Brady that led to the discriminatory acts.” Outlining a sequence of events that included Johnson assuring the council that the police department was taking proper action based on false assurances from Wray, a group of minority officers approaching the city manger with concerns and Johnson’s decision to bring in an outside agency to investigate, Schroeder opined that, contrary to Fulmore’s assertions, the specific factual allegations in his complaint lead to an opposite conclusion. “These allegations, together with the city’s subsequent acceptance of Wray’s and [Deputy Chief Randall] Brady’s resignation, are inconsistent with and in fact belie Fulmore’s conclusory assertion that the city permitted a known custom or usage of racial discrimination within the GPD to continue and fester as a matter of specific intent or deliberate indifference between June 2005 and December 2005.” As to Fourth Amendment claims that Johnson, former Chief Tim Bellamy and other city employees violated Sanders and Fox’s Constitutional right to be free of unreasonable search and seizure, Schroeder found that none of the defendants’ actions “plausibly affected the evidence put before the grand jury (which was based on the SBI investigation, not the investigations by the city attorney or RMA) or cause the grand jury to find probable cause where none existed.” As city manager, Johnson was a step removed from internal investigations within the police department after Wray’s departure, with Bellamy reporting to him as head of the police department. “The Fourth Amendment claims against  Johnson ultimately consist of nothing but suspicion that the proceedings against plaintiffs were somehow manipulated and that Johnson was somehow involved,” Schroeder said.

Sanders’ and Fox’s complaint includes of assertions that department employees involved in internal investigations manipulated evidence, including that Capt. Martha Kelly, then head of internal affairs, withdrew a document called “Memorandum #9” and had it destroyed at then-Capt. Gary Hastings’ request. The lawsuit also alleges that “the SBI received statements, which had been suppressed by the [city], that led to all charges against Scott Sanders and Tom Fox being dismissed by the SBI.” At the time the lawsuit was filed, Vermitsky declined to specify what information had been allegedly withheld from the SBI by the city, and those questions appear not to have been clarified to Schroeder’s satisfaction.

The lawsuit also alleges that Hastings interviewed a witness about a document known as the “black book” but suppressed interview notes.

“The amended complaint does not explain the significance of these alleged actions, however, much less how they affected the grand jury proceeding or could have caused the grand jury to find probable cause where none allegedly existed,” Schroeder wrote. “It remains unknown what ‘Memorandum #9’ allegedly contained, what the ‘black book’ interview allegedly was about, or why either was relevant to the grand jury’s probable cause determination.”