310 F. Supp. 3d 399
S.D. Ill.2018Background
- George Airday was a New York City Marshal from 1984 until his five-year term expired December 20, 2013; he served in the DOF Scofflaw (booting/towing) Program and had a long history of being held over/reappointed.
- In late 2011–early 2012 Airday was arrested on domestic-related charges; NYPD recovered multiple firearms from his home, including one unlicensed weapon; criminal charges were later resolved mostly in his favor or dismissed.
- DOI (through Keith Schwam) suspended Airday in June 2012 after administrative charges alleging failure to cooperate and related conduct; Airday paid a $7,500 fine under a disciplinary stipulation and was reinstated in June 2013.
- Schwam recommended, and the Mayor’s office appointed, a successor (Frankie Alvarez) to Airday’s badge when Airday’s term expired in December 2013; DOI notified Airday that his term had expired and his successor was appointed.
- Airday sued under 42 U.S.C. §§ 1983 and 1988 alleging: First Amendment retaliation, Fourteenth Amendment procedural and substantive due process violations, and equal protection/selective enforcement; the court limited the surviving claims to procedural due process (re non-reappointment) and selective enforcement; First Amendment and some other claims were dismissed at summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural due process — entitlement to reappointment/holdover | Airday argues a property interest arose from long-standing practice of holding-over/reappointing marshals, so he was entitled to notice/hearing before non-reappointment | City argues no statute, rule, or contract guaranteed reappointment; terms expire and office becomes vacant; successor appointment lawful | Genuine dispute of material fact exists whether implied contract/custom created an entitlement; summary judgment DENIED as to this claim (due process claim survives in part) |
| Procedural due process — removal from Scofflaw Program (Feb 2012) | Airday contends removal from Scofflaw constituted deprivation of a property interest without process | City contends Scofflaw participation was discretionary (SOPs allow termination) and no protected property interest existed | No protected property interest shown in Scofflaw participation; summary judgment GRANTED as to this aspect |
| Equal protection — selective enforcement | Airday says similarly situated marshals with misconduct were treated more leniently, showing bad faith/malice | City argues comparators differ materially and DOI acted appropriately based on facts | Material factual disputes about comparators and motive preclude summary judgment; claim survives (DENIED) |
| First Amendment retaliation | Airday claims he contacted officials and criticized Paylock booting program (public concern) and was retaliated against | City contends his speech was as an employee (not citizen), primarily about private employment/business interests, and DOI lacked knowledge of his outreach | Court finds speech not shown to be protected (employee-duty/private-grievance focus) and no nexus to DOI actions; summary judgment GRANTED (claim dismissed) |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (moving party burden on summary judgment)
- Bd. of Regents v. Roth, 408 U.S. 564 (property interest analysis for due process)
- Connick v. Myers, 461 U.S. 138 (employee speech — public concern / as-citizen inquiry)
- Garcetti v. Ceballos, 547 U.S. 410 (speech pursuant to official duties not protected)
- Perry v. Sindermann, 408 U.S. 593 (protected property interest from implied promises/practices)
- Matthews v. City of New York, 779 F.3d 167 (First Amendment retaliation framework)
- Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775 (implied practice can create entitlement)
- Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity standard)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
- Mullenix v. Luna, 136 S. Ct. 305 (clearly established right standard)
- Terebesi v. Torreso, 764 F.3d 217 (considerations for clearly established law in qualified immunity)