Federal judge reverses part of dismissed civil suit
A federal judge in Pittsburgh reversed, in part, her decision dismissing a civil complaint filed by a former state police sergeant against two of his superiors. U.S. District Judge Nora Barry Fischer found Monday that an attorney representing Lt. Charles Depp and Capt. Roger Waters waived the statute of limitations for the complaint filed against them by James Baranowski.
That was one of two reasons Barry Fisher dismissed Baranowski’s complaint. He sued in 2005 after retiring from his job of 17 years with the state police. In his suit, Baranowski claimed his concerns about a police-involved shooting death made him a target for retaliation from his superiors.
Baranowski claimed that after he questioned the investigation, Depp filed six disciplinary complaints against him, all of which were later upheld by Waters. The suit indicated that Baranowski retired because he was told that his job was in jeopardy.
While Barry Fisher reversed her earlier ruling about the statute of limitations, she maintained her ruling that the suit should be dismissed because Baranowski expressed his opinions about the police shooting in the capacity of his job.
Because he did so as a police officer, Barry Fisher found that he was not entitled to constitutional free-speech protections.
“Baranowski’s unwillingness to relay his reservations about the (Michael) Ellerbe investigation to people other than his superiors only serves to illustrate that he was speaking as a police officer to other police officers rather than as a private citizen to members of the general public,” the judge wrote in her opinion.
Barry Fisher found that the constitution was not designed to govern employee grievances.
“In holding that Baranowski’s speech does not enjoy constitutional protection from employer discipline, the court does not trivialize the courage of those who seek to expose governmental misconduct. Instead, it merely clarifies that the constitution was never meant to provide a remedy for every inappropriate action taken by a governmental official.
“The people of Pennsylvania, of course, remain free to address the concerns of people in Baranowski’s position by invoking the legislative process. The court can only apply the law as it currently exists,” Barry Fisher wrote.
The former sergeant expressed doubt about how police said the 2002 shooting of Ellerbe, 12, occurred in the East End neighborhood of Uniontown.
Baranowski was the incident commander at the scene of the shooting. Trooper Samuel Nassan shot Ellerbe on Dec. 24, 2002. A civil jury recently found that both Nassan and Cpl. Juan Curry shot at Ellerbe, and awarded Ellerbe’s father $28 million following an excessive use of force trial. Baranowski testified on behalf of Ellerbe’s father, Michael Hickenbottom of Uniontown, who sued police.
Nassan and Curry, who have been cleared of wrongdoing by Fayette County, state and federal investigators, have testified that Ellerbe was shot after Curry’s gun accidentally discharged. The troopers were chasing Ellerbe, who had fled from a stolen sport utility vehicle. Both testified that Ellerbe ignored commands to remove his hand from his pocket during the chase.
Nassan did not realize Curry’s gun accidentally discharged, and believed that Ellerbe shot his partner. He shot Ellerbe once, killing him.
Attorneys for Hickenbottom argued that the evidence at the shooting did not match the troopers’ accounts, and said there was a cover-up of what actually occurred.
That verdict is currently being appealed.
While that puts an end to this civil suit, a similar one is being litigated in federal court. When Barry Fisher dismissed this suit, Baranowski initiated a similar complaint against Waters and Depp in Fayette County Court.
That case has since been transferred to federal court.