On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. Nos. 4-07-cv-01190 and 1-09-cv-00323) District Judge: Honorable John E. Jones
The opinion of the court was delivered by: Roth, Circuit Judge
Argued on November 2, 2010 Submitted under Third Circuit LAR 34.1 (a) on November 2, 2010
Before: SCIRICA, STAPLETON and ROTH, Circuit Judges
This appeal involves the application of the Fourteenth Amendment's Due Process Clause to the suspension of policemen in Pennsylvania. Michael Schmidt, an officer in Pennsylvania's Capitol Police, claims that appellees, senior officers of the Capitol Police and officials of Pennsylvania's Department of General Services, violated his due process rights when they failed to provide him a hearing before suspending him without pay. In deciding this appeal, we keep in mind that, under Pennsylvania law, 53 Pa. Stat. § 46190, policemen and fireman cannot be suspended or terminated without just cause.*fn1 This recognition of this property interest in their positions has been applied both to terminations and to suspensions. See, e.g., Dee v. Borough of Dunmore, 549 F.3d 225, 230 (3d Cir. 2008). Absent extraordinary circumstances, the statute has been interpreted as creating a property interest requiring at least a brief and informal pre-termination or pre-suspension hearing.*fn2 Id.
In the case before us, the District Court held that, despite Schmidt's property interest in his position, because there was a post-suspension hearing provided by the Collective Bargaining Agreement (CBA), no pre-suspension hearing was necessary. We now hold that, except for extraordinary situations, under Pennsylvania law, even when union grievance procedures permit a policeman to challenge his suspension after the fact, a brief and informal pre-termination or pre-suspension hearing is necessary. However, because this rule was not clearly established at the time of Schmidt's suspension, we conclude that appellees are entitled to qualified immunity.
A. Schmidt's Handling of Complaint Against Senior Capitol Police Officers
Schmidt was hired in November 2002 by the Department of General Services (DGS) of the Commonwealth of Pennsylvania to serve as a patrol officer with Capitol Police. On July 15, 2006, Schmidt had a scheduled shift at the Harristown post, an area of Harrisburg covering the Attorney General's Office and the Rachel Carson Building. Before his shift began, Schmidt was approached by a fellow officer, Kenneth Shaffer (Officer Shaffer), who wanted to file a complaint against his superior officers, Richard Shaffer, the Superintendent of the Capitol Police (Superintendent Shaffer),*fn3 Robert Dillard, Deputy Superintendent, and Robert J. Rapak, a Special Investigator.
The parties dispute the nature of Officer Shaffer's complaint: according to appellees, Officer Shaffer merely wished to file a union grievance, but according to Schmidt, Officer Shaffer also wanted to file a criminal complaint.
Officer Shaffer wanted to file the complaint because he believed he
was about to be charged with misconduct by his supervisors in
retaliation for his refusal to re-file charges against a suspect in an
incident that he believed had already been resolved.*fn4
Officer Shaffer wanted a union representative available when
he was served with paperwork relating to his own alleged misconduct.
Schmidt told Officer Shaffer that John Bruno, a fellow police officer and union representative, would be available soon. After Bruno arrived, Officer Shaffer explained his complaint to Schmidt and Bruno. Schmidt and Bruno then went to a dispatch center at a different location in order to access the Capitol Police's computer system, which is called "METRO." METRO is used by most police agencies in the Harrisburg area. Schmidt entered Officer Shaffer's complaint into METRO. Schmidt's entry summarized the complaint against Superintendent Shaffer, Dillard, and Rapak and selected type "A" for each of them, indicating a status of "Accused."
The parties dispute whether Schmidt knowingly violated Capitol Police regulations and policies in making the METRO entry. According to appellees, the dispatch center was outside of Schmidt's duty area, and permission was required for Schmidt to enter the center and use the METRO system. Schmidt claims that it was permissible for him to stop at the dispatch center on the way to his duty area and that, while the order not to go into the center or use METRO without permission had been communicated to supervisors, it had not been communicated to him or other junior officers. Moreover, Schmidt had a log-in and password for METRO. The parties also dispute the significance of the "A" entries made by Schmidt. According to Schmidt, the "A" meant only that Shaffer had directly accused Superintendent Shaffer, Dillard, and Rapak. According to appellees, the "A" also meant that there was probable cause to arrest the three senior officers on sight. Schmidt did not believe that he needed to report the complaint up the chain of command before entering it into METRO. Appellees claim, however, that Capitol Police policy required Schmidt to report the complaint to his superiors before entering it.
After Superintendent Shaffer learned that Schmidt had entered the complaint into METRO, he directed Schmidt's supervisor, Sergeant Bistline, to make changes to the entry. Bistline printed out a copy of the complaint and then removed the entry from METRO. After learning of Bistline's actions, Schmidt confronted him, questioned him about removing the entry, and then told Bistline that he (Bistline) had "fucked up."
Following the incident, Superintendent Shaffer arranged a meeting with Gregory Green, Director of the Bureau of Human Resources (HR) in the DGS, to discuss allegations of misconduct against Schmidt. Superintendent Shaffer, Dillard, Rapak, and Connie Tennis (Chief of Labor Relations for HR) met with Green. The Superintendent asked HR to handle the investigation of Schmidt because the Superintendent, Dillard, and Rapak were accused in the complaint that had been entered by Schmidt.*fn5 At Superintendent Shaffer's direction, Rapak conducted a preliminary investigation into Schmidt's conduct and provided his findings to Green and Tennis.*fn6
Green concluded from the report that Schmidt had failed to report to his assigned post, had disobeyed work orders, and had showed disrespect and insubordination to his supervisor. According to Green, this misconduct was serious enough to raise "issues of trust" with respect to Schmidt. For that reason, he recommended that Schmidt be suspended pending further investigation. Green discussed the matter with Deputy Secretary of DGS Anne Rung, who was acting on authority delegated by DGS Secretary James Creedon. She approved Green's recommendation.
On July 18, 2006 -- three days after Schmidt had entered the complaint into the METRO system -- Schmidt was notified that he was suspended without pay from his position with the Capitol Police. Schmidt was called into an office by Dillard and several officers, told he was being suspended, and provided with a letter concerning his suspension. The letter, which was signed by Green on behalf of Secretary Creedon, explained that "the reason for this suspension was that you allegedly were involved in the entry of information into the ‗METRO' system, which was intended to undermine the administration and operation of the Capitol Police." Included with the letter were excerpts from the Pennsylvania Civil Service Act concerning Schmidt's rights under the Act, including a provision stating that, while an external investigation is ...