Demoted for refusing to break the law

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Latest post Tue, Jan 19 2016 10:55 AM by Drew. 10 replies.
  • Sun, Jan 17 2016 8:24 AM

    • NMNeil
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    Demoted for refusing to break the law

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    In 2014 I was a Detective assigned to the property room of a New Mexico Police Department. Part of my duties was to arrange for the destruction of unwanted, unneeded or contraband property from concluded cases.

    One of the cases involved the seizure, by search warrant, of about $6,000 of equipment that had been found being used to grow and package marijuana. I contacted the case agent (a superior officer and member of the drugs task force) and told him I would be destroying it. He told me that he had made ‘arrangements’ to return the equipment. I told him that it was drug paraphernalia and under both State and Federal law it would be an offence to return it or any other contraband and refused to return it.

    He then told me that two Assistant District Attorneys had decided that if any of the paraphernalia had an alternative legitimate use, it had to be returned. I again cited Federal and State law, plus several Supreme Court decisions that drug paraphernalia could not be returned and that this I had never been told to return drug paraphernalia in the past.

    I told my immediate supervisor then told me it was defiantly drug paraphernalia and to have it destroyed. I wrote a Court Order which was approved by the police in-house attorney, had it signed by a District court Judge and had all the drug paraphernalia crushed.


    The case agent made a formal complaint against me for insubordination and the case was referred to Internal Affairs for review. The case agent was also the head of the Internal Affairs Department and conducted the interview, which was brief because I refused to cooperate as it was a conflict of interest. Another supervisor was assigned and found in the case agents favor.

    I was demoted and suspended for two weeks without pay. When I returned from my suspension I found that the case agent had been promoted and would be my immediate supervisor. I could see that this would not end well so I resigned.

    I contacted a local attorney who filed a tort claim with the City.

    As retaining my Law Enforcement License was an issue I was given the opportunity to talk to the board of the New Mexico Department of Public Safety. This board is composed of former Police Chiefs and members of the New Mexico Attorney General’s Office. The unanimously exonerated me of any wrongdoing and confirmed that the case agent had given me an unlawful order.

    Over the next year or so I contacted my attorney either by e-mail of going into his office. Each time he assured me that my case was being actively pursued and that he wanted to make sure all the documents were correct for the Court filing. A few weeks ago I went to his office and found that he had moved to a new office a few months prior. I contacted him by e-mail asking the progress of my case. His reply was that he had actually done nothing at all and didn’t want to represent me anymore. I contacted the City who confirmed that they had received the tort claim but for reasons unknown had not forwarded it to their insurers. The insurers eventually rejected it.

    I attempted to retain another attorney but the moment they find out about my previous attorney they don’t want to even look at my case.

    So the question is.

    Do I have a valid claim and if so do I continue Pro Se with the tort claim, which has a monetary cap, or can I somehow sue under US 1983 or the 1st. and 14th.  Amendment?

  • Sun, Jan 17 2016 10:53 AM In reply to

    Re: Demoted for refusing to break the law

    I don't see a good tort claim here, at least if this were in my state. This strikes me as basically an employment law related matter. I should think that either an action under the applicable civil service rules or under a theory of wrongful retailiation or something similar might be more fruitful, if you still can pursue them. Certainly this would not amount to a civil rights claim under the U.S. Constitution or 42 U.S.C.  § 1983.

    No matter what your basis for the lawsuit, I do not see much in the way of damages. You quit after returning from your suspension becasue you didn't like that this inspector was now your boss. It sounds like you didn’t even give much time working for him to see how it would go and simply assumed you’d have more problems with him. You weren't fired so the fact that you don’t have a job and have lost your income from it is not the fault of the agency. That was a decision you made. Thus, I don’t see much in the way of a lost wages claim to this other than the two weeks without pay and the difference between whatever your salary was before demotion and what it was after for the time you worked there before you quit. Apart from the lost wage claim there is nothing in your post that suggest you suffered any other damages that the law would recognize.

    If you would have had a good claim but can't pursue it now then you may have a good malpractice claim against that attorney. It angers me when lawyers simply drop cases like this and fail to keep clients informed. It's a violation of the rules of professional conduct and harms clients. If nothing else I encourage you to complain about that lawyer to the New Mexico Supreme Court Disciplinary Board after consulting a lawyer who handles legal malpractice cases to ensure that what you say in the complaint won't work against you in any lawsuit you file against your old attorney.

  • Mon, Jan 18 2016 6:02 AM In reply to

    • NMNeil
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    Re: Demoted for refusing to break the law

    Thanks.

    I have already filed a complaint with the State Bar Association.

    My thinking on this case was that a civil jury has only two choices, for me or against me.

    If it's for me it would then cast doubt on the competancy and knowledge of the law of two Assistant DA's and a senior member of the drugs task force. This would be because of their decision that if someone is not charged with the posession of drug paraphernalia and they can show a lawful use for the item that it must be returned. But for me it's not an issues as I would have won my case.

    On the other hand if they find that the DA's are correct it would mean every town city and municipality would have to start returning drug paraphernalia or explain, possibly during a class action, why their property was destroyed without informing them that it could be returned. It would also mean that the Law Enforcement Acadamy has been giving recruits the wrong legal training information for years and they will have to change their carriculum.

    Whatever the jury's decision, it's going to be expensive for the State.

  • Mon, Jan 18 2016 4:02 PM In reply to

    Re: Demoted for refusing to break the law

    NMNeil:
    My thinking on this case was that a civil jury has only two choices, for me or against me.

    The jury’s decision would be whether the department owed you anything as a result of a wrong done to you. It would not necessarily resolve the issue of whether your position on returning these items to the suspects after the case is concluded was correct.

  • Mon, Jan 18 2016 5:24 PM In reply to

    • NMNeil
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    Re: Demoted for refusing to break the law

    Firstly I would like to thank you for all your assistance, and a fresh point of view.

    I have decided to go forward with my claim using NM Statute 10-16C-3, Public employer retaliation action prohibited.

    The gist of which is:

    A public employer shall not take any retaliatory action against a public employee because the public employee:

    C.   objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act.

    Definition: "retaliatory action" means taking any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment;  

     

    That seems to cover my issue.

  • Mon, Jan 18 2016 5:54 PM In reply to

    • Drew
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    Re: Demoted for refusing to break the law

    As a non lawyer, I See your point  but pro SE and even if we assume you are 100% right, your odds resemble taking a rubber knife to a gun fight and enemy sends in a pro with an AK 47.

    Given that the statute you cite provides for attorney fee recovery ( most civil,actions do not not)  I would,give serious thought to using a pro...    Around me there are 1-2 attorneys who have taken big bites. out of local governments for employer misbehavior...Im sure there is at least 1 in your area..find him or her. 

    Pay keen attention to filing the action well inside the 2 year statute of limitations! 

    Id be a bit nervous about administrative resjidical  if the new charge is about the same as the earlier one ..beyond me...but check the points?   you only get one bite at same Apple...



  • Tue, Jan 19 2016 6:03 AM In reply to

    • NMNeil
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    Re: Demoted for refusing to break the law

    If I could find an attormey who would take my case, I would.

  • Tue, Jan 19 2016 6:08 AM In reply to

    • NMNeil
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    Re: Demoted for refusing to break the law

    I forgot to add

    10-16C-4. Right to civil action for damages; affirmative defenses; remedy not exclusive. (2010) 

    A.   A public employer that violates the provisions of the Whistleblower Protection Act shall be liable to the public employee for actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation.  In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee.

    Compensation for the special damage is the mental anguish caused, which is set by a jury, plus punative damages.

    But at the end of the day if I don't have much of a chance of winning I'll just release the whole story to an investagitive reporter because this case runs very deep.

    If you wish I can give a brief run down of what I mean.

  • Tue, Jan 19 2016 7:09 AM In reply to

    • Drew
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    Re: Demoted for refusing to break the law

    Given that the starute provides  for fee recovery....and governments seem able to,pay fees...odds are some attorneys make a good living doing such work ...cast a wider net?    OR there is some weak point in your case that scares them off? 

    But don't miss deadlines!!



  • Tue, Jan 19 2016 7:28 AM In reply to

    • NMNeil
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    Re: Demoted for refusing to break the law

    I don't think it's a weak case, but I'm biased.

    The problem seems to be that no local attorney wants to take on the police department or city hall.

     

  • Tue, Jan 19 2016 10:55 AM In reply to

    • Drew
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    Re: Demoted for refusing to break the law

    That's not a rare problem...cast a wider net ...and find somebody with a track record of successful litigation against police or local units of government ....they are out there ...



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