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Del. troopers' $2 million retaliation victory thrown out

By The Associated Press

Editor’s note: The Associated Press reported on Oct. 10 that Sgt. Christopher Foraker had settled his claims against the Delaware State Police. Attorneys would not confirm the amount of the settlement, but The (Wilmington) News Journal reported that the total was $150,000, about $50,000 more than the jury awarded Foraker in May. Meanwhile, Cpls. Kurt Price and Wayne Warren, who were awarded substantially more money by the trial jury, are pursuing an appeal of Judge Gregory Sleet’s decision.

DOVER, Del. — A federal judge yesterday threw out a jury verdict awarding almost $2 million to three Delaware state troopers who claimed they were retaliated against for speaking out about problems at a now-closed police firing range.

U.S. District Judge Gregory Sleet in Wilmington ruled that the jury's verdict could not stand in light of the U.S. Supreme Court's recent decision that government employees do not have free-speech protections for what they say as part of their jobs.

The Supreme Court's 5-4 decision in Garcetti v. Ceballos came down May 30, one day before a federal jury in Wilmington ruled that former Delaware State Police superintendent Aaron Chaffinch and his successor, Col. Thomas MacLeish, retaliated against Cpls. Kurt Price and Wayne Warren and former firing-range supervisor Sgt. Christopher Foraker for exercising their free-speech rights.

In yesterday's ruling, Sleet said that evidence presented at trial, including Foraker's own testimony, indicates that pointing out problems at the firing range was part of the troopers' job duties, and thus not subject to free-speech protection against employer discipline.

"The inescapable conclusion from all of this evidence is that speaking out within the chain of command about any hazardous range conditions was squarely within Foraker's official duties," the judge wrote. "... The record is also rife with evidence that Price and Warren themselves believed it was their responsibility to speak out within the chain of command about conditions at the range."

Sleet noted that all three troopers were ordered to cooperate with state auditors investigating environmental and safety problems at the range, and that their statements to auditors thus also were made within the scope of their official duties.

Sleet also overruled the jury's finding that Chaffinch defamed Foraker in statements to the news media. The judge noted that the alleged defamatory statements about Foraker's management of the firing range were nearly identical to the written findings of the state auditors.

"Therefore, the evidence does not support the jury's conclusion that Chaffinch acted with actual malice," wrote Sleet, who ordered a new trial on a separate claim by Foraker that Chaffinch retaliated against him in revenge for losing a previous retaliation lawsuit filed by Foraker following his transfer from the range after reprimanding a friend of Chaffinch.

Attorney General Carl Danberg did not immediately return telephone messages seeking comment on Sleet's ruling.

The troopers' attorney, Thomas Neuberger, said he would appeal the ruling, and that his clients were "disappointed but determined."

"It is the business of courts of appeals to re-examine the serious legal issues raised by this case," Neuberger said. "We expect to ultimately prevail because the decision impacts the historic role of our juries in resolving civil disputes."

Price and Warren were declared unfit for duty after being diagnosed with hearing loss, but they argued at trial that other troopers with physical disabilities, including hearing loss, have been allowed to remain on duty. Price was forced to resign in April after using up his accumulated leave time, and Warren left the police force about a month ago after expending his accumulated leave. Foraker is on leave through December, Neuberger said.

Jury finds Del. state troopers were victims of retaliation
Three officers who had spoken out about problems at state police firing range win nearly $2 million in damages. 06.01.06


Head-scratching follows Garcetti ruling

By Tony Mauro Will government employees now go public with complaints, rather than to supervisors? 05.31.06

Public employee speech

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