United States District Court, N.D. Oklahoma
JOHN F. SINGER, an individual, Plaintiff,
JANICE STEIDLEY and M. BRYCE LAIR, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, District Judge.
Before the court is the Motion for Summary Judgment [Dkt. #80] filed by defendants Janice Steidley ("Steidley") and M. Bryce Lair ("Lair"). Defendants seek summary judgment against plaintiff John F. Singer ("Singer") on his claims for violation of his First Amendment rights of free speech and association and state law claims for libel, slander and defamation.
On February 4, 2013, John Singer, a Claremore Police Department investigator, filed suit in this court alleging Janice Steidley and M. Bryce Lair-the District Attorney and First Assistant District Attorney, respectively, for Craig, Mayes Rogers Counties, Oklahoma- manufactured evidence that he had lied in sworn statements concerning a criminal investigation 18 months earlier, and then reported the alleged misconduct to law enforcement officials, courts and criminal defense attorneys, purportedly pursuant to United States v. Giglio, 405 U.S. 150 (1972). Singer claimed that defendants undertook these activities to retaliate against him for being a vocal critic of their performance in the District Attorney's office. In his original Complaint, Singer asserted claims for violation of his First Amendment rights of free speech and association and his Fourteenth Amendment property and liberty interests; exemplary damages; declaratory judgment and injunctive relief.
Defendants moved to dismiss the Complaint. The court granted the motion in part and denied it in part, dismissing Singer's claims for violation of his Fourteenth Amendment rights, declaratory judgment and injunctive relief. [Dkt. #19]. It also dismissed his claim for violation of his First Amendment rights to the extent it was based on alleged disclosures of Giglio material to the U.S. Attorney for the Northern District of Oklahoma and defense attorneys in Rogers County District Court criminal cases. [ Id. ].
With leave of court, Singer filed a First Amended Complaint which added state law claims for libel, slander and defamation. [Dkt. #30]. Defendants' motion to dismiss the new claims was denied. [Dkt. #78].
The case is set for jury trial on April 21, 2014. In the pending motion, defendants seek summary judgment in their favor on all of plaintiff's claims against them.
I. Material Facts
Singer is an investigator with the Claremore Police Department ("CPD"). [Dkt. #30, First Amended Complaint, ¶7]. At all relevant times, Steidley has been the District Attorney and Lair the First Assistant District Attorney for the Twelfth Judicial District of Oklahoma. [ Id., ¶¶2-3].
From July 23-29, 2011, Singer conducted an investigation of Matthew Grant Sunday ("Sunday") in connection with the alleged sexual abuse of a minor female. In the course of his investigation, Singer prepared a Report of Investigation, an Affidavit for Search Warrant and a Claremore Police Arrest Affidavit and Booking Form. [Dkt. #80, Exs. B, C and D]. Additionally, Singer's interview of Sunday was videotaped. [ Id., Ex. E, Interview DVD].
On August 31, 2011 Sunday was charged with eight counts, including Second Degree Rape by Instrumentation, in Rogers County District Court, Case No. CF-2011-526 (" Sunday case"). On January 11, 2012, all charges except two counts of providing alcohol to a minor in violation of 37 Okla. Stat. § 537 were dismissed on the state's motion. On July 2, 2012, Sunday pled guilty to the two counts of furnishing an alcoholic beverage to a minor.
At some point in time, Steidley and Lair reviewed Singer's actions in the Sunday case to determine whether his conduct should be disclosed under Giglio. [Dkt. #80, Defendants' Responses to Plaintiff's First Interrogatories Exs. G and H, pp. 5-6]. Ultimately, defendants prepared a packet of information relating to the Sunday case to be disclosed to defendants in criminal cases in which Singer would be testifying on behalf of the State. [Dkt. #80, Ex. N., Steidley Affid., ¶7]. Collectively, those documents are referred to as the " Giglio materials."
The timing and motivation of defendants' Giglio review are hotly contested, as is the conclusion defendants reached based on the review.
Defendants contend that although Singer's report and affidavits represented Sunday had admitted he had inserted his finger into the alleged victim's vagina "against her will, " the DVD confession of Sunday does not support this claim. [ Id., Statement of Undisputed Material Fact #5; Exs. B-E]. Singer argues that although Sunday did not state in so many words that that he had "acted against the victim's will, " his statements and admissions in the course of the interview established that, in fact, Sunday acted against the victim's will.
Further, Singer asserts that Steidley and three of her ADAs reviewed all of the investigative material Singer prepared in the case before charging Sunday and determined there was sufficient evidence to charge Sunday with Second Degree Rape by Instrumentation. In her deposition, Steidley admitted the video of the interrogation was reviewed by her office and she met with Assistant District Attorney Kathy Lahmeyer and investigator Gary Stansill and discussed the case before charges were filed. [Dkt. #90, Ex. 1, Janice Steidley Dep., 48:14-51:16].
The exact timing of defendants' Giglio review is unclear. In her November 13, 2013 deposition, Steidley testified the determination that the Sunday evidence was Giglio material was made before her meetings with CPD Chief Brown and Pryor Police Chief Nichols on January 7 and 8, 2013, but she did not know when her prosecutors reviewed the evidence. [Dkt. #90, Ex. 1, Steidley Dep., 36:18-37:11]. In an affidavit executed November 25, 2013, Steidley stated the Giglio review "began in 2012, months before the disclosures of the Giglio Materials." [Dkt. #80, Ex. N, Steidley Affid., ¶4].
The parties dispute the motivation for the review. In her affidavit, Steidley states:
It was brought to my attention by an attorney in our office that Officer John Singer... may have engaged in activities that would call his credibility into question in connection with a rape investigation he conducted in 2011. That investigation resulted in charges being filed against Matthew Grant Sunday (the Sunday Case). There was a question of whether Officer Singer's conduct in connection with the Sunday Case should be disclosed to defense counsel under the Supreme Court case of Giglio v. United States, 405 U.S. 150, 154 (1972).
[Dkt. #80, Ex. N, Steidley Affid., ¶3].
Singer, however, argues a Giglio review was performed before charges were ever filed, and the subsequent review and disclosures by defendants were in retaliation for his criticism of Steidley's performance as district attorney.
The evidentiary materials establish the following chronology:
Claremore Progress Article on Rogers County Drug Bust
On January 6, 2013, Salesha Wilken ("Wilken"), a reporter for the Claremore Daily Progress (" Progress "), authored an article entitled "The Clock is Ticking, " describing the aftermath of a historic drug bust from 2011. [Dkt. #80, Ex. R, Wilkin Dep., 9:11-17; Ex. S, Article]. The article detailed the disposition of charges against 69 individuals and stated that "the long-term impact on drug traffic has yet to be determined, " and "[t]he convictions carried a minimal penalty, according to some officials." [Dkt. #80, Ex. S, Article]. Singer was interviewed in connection with the article and provided information that was critical of the DA's performance. [Dkt. #90, Ex. 14, Plaintiff's Supplemental Responses to Defendant Steidley's First Discovery Requests, Answer to Interrogatory No. 1, ¶12].
Disclosure of Giglio Materials to U.S. Attorney
As the court noted in its Opinion and Order on the first Motion to Dismiss [Dkt. #19] and as alleged in ¶22(a) of the First Amended Complaint, on January 7, 2013 defendants provided the Giglio materials to the United States Attorney for the Northern District of Oklahoma and defense counsel in cases in which Singer would be a witness. This court ruled those disclosures were privileged.
Disclosure of Giglio Materials to CPD Chief Brown
On January 8, 2013, at Steidley's request, CPD Police Chief Stan Brown met with defendants. [Dkt. #80, Ex. O, Stanley Brown Dep., 59:17-23, 61:3-9]. Chief Brown testified that during the meeting, defendants expressed "their concerns that John Singer had made misstatements in a[n] affidavit that they had in regard to videotaped confession of a suspect." [ Id., 62:8-11]. He testified defendants gave him a packet that included a probable cause affidavit for a search warrant and an "unauthorized, uncertified copy of a transcript relating to the videotaped interview." [ Id., 65:6-15; see also Ex. N, Steidley Affid., ¶9].
In her affidavit, Steidley avers that her "sole purpose" in meeting with Chief Brown was to "inform him of my concerns with respect to the Sunday Case and Officer Singer, " and "was in no way to retaliate' against Officer Singer." [Dkt. #80, Ex. N, Steidley Affid., ¶9]. Chief Brown testified he did not consider defendants' statements to be unprofessional or improper in any way. [Dkt. #80, Ex. O, Brown Dep., 63:10-64:1]. In response to the question, "Did both these prosecutors seem genuinely concerned about the issue that they may have with Mr. Singer's credibility?" he stated: "There was-I think we all realized the seriousness about the allegation. I mean I wouldn't-I don't know if concern' is the right term or the right definition of it, but there is a-I think there was mutual respect for the seriousness or gravity of this allegation." [ Id., 64:2-11]. Chief Brown testified he had no criticism of defendants for asking to meet with him and discuss an issue with an officer or the credibility of an officer. [ Id., 61:10-22]. When questioned by counsel for defendants, he testified:
Q: Did they seek your input as to-I mean did they ask you what they should do? Or how did the conversation go from there?
A: They didn't ask me what they should do. They presented the documents, didn't have a lot of time to peruse the documents. Just basically told me what they felt was the context of them. And, of course, I'm stunned. It's a serious allegation.
A: And I made reference to that effect, "this is a serious allegation." I recall Ms. Steidley saying, "yes, it's possibly a career-ending issue." I think Bryce had interjected himself into the conversation somewhat, basically along the same lines. And I told them, because of the seriousness of the allegations, I would need to first review the material and speak with my legal counsel and my boss, and we would go from there....
[ Id., 62:12-63:4].
Meeting With Pryor Police Chief Nichols
At Steidley's request, on January 9, 2013, Dennis Nichols, the Chief of Police for the Pryor Police Department, met with Steidley and Lair in Nichols' office. [Dkt. #80, Ex. P, Nichols Dep., 7:19-8:7]. James Willyard, a sergeant with the Pryor Police Department, attended the meeting and (without the knowledge of Nichols, Steidley or Lair) recorded the conversation that took place. [ Id., 8:15-25]. Willyard testified he learned of the issues stemming from the Sunday case from Singer on January 8. [Dkt. #80, Ex. Q, Willyard Dep., 19:5-19]. He testified Singer told him Steidley had spoken to Chief Brown and "said that he was-I guess lied in an affidavit." [ Id., 19:5-8]. Defendants did not give Chief Nichols the Giglio materials, and did not use Singer's name until Willyard mentioned it. [ Id., 45:13-18; see also, Ex. P, Nichols Dep., 20:19-25]. A partial transcript of the recorded meeting reflects that Steidley and Lair told Chief Nichols and Willyard they believed Singer was Giglio impaired and discussed the basis for their belief. [Dkt. #90, Ex. 6, Transcript of 1/9/13 Meeting at Pryor Police Department, 11:25-6:23]. Sometime after the January 9, 2013 meeting, Willyard and Singer provided the Giglio materials to Chief Nichols on their own accord. [Dkt. #80, Ex. P, Nichols Dep., 17:8-20].
Also on January 9, 2013, Lair asked District Attorney investigator Gary Stansill to prepare a report on his involvement in the Sunday case investigation. [Dkt. #80, Ex. L, Stansill Report]. The Stansill report, which is dated January 21, 2013, is based on Stansill's review of his worksheets from the period of the Sunday case investigation, August 15-30, 2011. [ Id. ]. According to the report, on August 15, 2011, Singer expressed concern to Stansill because he had presented the Sunday case to the District Attorney's office, but charges had not yet been filed. He told Stansill he had obtained a confession from the suspect in the case, and he was upset because ADA Kathy Lahmeyer wanted to review the video of his interview with the suspect before she filed any charges. Between August 15-19, 2011, Stansill talked with Lahmeyer, who told him she was waiting for the video of the suspect interview before filing charges. On August 19, 2011, Stansill met again with Lahmeyer, who had just received the video. He and Lahmeyer watched portions of the video but had difficulty hearing some of the conversations between Singer and Sunday. He took the case file and a copy of the video home that weekend for further review. On Monday, August 22, 2011, he met again with Lahmeyer and discussed the Sunday case. Neither Lahmeyer nor Stansill could hear a confession on the videotape. On August 24, 2011, Stansill, Lahmeyer and ADA Tim Wantland interviewed the victim and had discussions with her father. Afterward, Stansill and Lahmeyer met with Steidley and had further discussions about the case. On Tuesday, August 30, 2011, Stansill had further discussions about the case with ADAs Lahmeyer, Don Palik and Wantland. Stansill stated, "Part of the discussion had to do with whether or not there were sufficient elements to file a charge of 2nd Degree Rape by Instrumentation" or alternatively, Sexual Battery. [ Id. ].
Stansill states in the report, "After the above meeting [of 8/30/11] I do not recall having any specific meetings or conversations regarding this case (until meetings with Janice Steidley and Bryce Lair in early January 2013)." [ Id. ].
Oklahoma Criminal Defense Lawyers Association Website
Josh Lee ("Lee"), an attorney in private practice in Vinita, Oklahoma, is a close personal friend as well as personal legal counsel to Lair. [Dkt. #80, Ex. V, Lee Dep., 5:5-8; 7:11-21; 17:21-18:4]. On January 17, 2013, Lee posted a comment regarding rumors he had heard about Singer on the Oklahoma Criminal Defense Lawyers Association ("OCDLA") website by email. [ Id., 25:1-17; Dkt. #80, Ex. W, Lee Emails]. The email stated:
FYI for those of you around NE Oklahoma who may have cases in state or federal court with this guy:
I can't get very many details but there is something going on with him and some possible Giglio issues. From what I can put together it appears that he arrested a guy for some sort of a sex crime and put in a search warrant affidavit as well as a PC affidavit that he got a confession. Apparently after the DAs office reviewed the video it allegedly wasn't true. Thank god they looked-props to them!
Just wanted y'all to know so you don't dispose of any cases of his without asking for information on this issue. One court official told me he has even hired an attorney to help him with possible perjury issues. I doubt very seriously it would go that far but it's still worth knowing about for your cases. So start asking questions.
[Dkt. #90, Ex. 11, OCDLA posting].
Lee denies he sent the OCDLA email at Lair's request or direction. [Dkt. #80, Ex. V, Lee Dep., 33:3-11]. He testified the content of his post came from a conversation he had with his law partner, Clint Ward. [ Id., 31:9-32:5]. Counsel for Lee, Dennis Caruso, declined to allow Lee to testify about the early January, 2013 conversation between Lee and Lair based on attorney-client privilege. [Dkt. #90, Ex. 9, Lee Dep., 9:13-10:6]. Lee did testify that he was retained by Lair because of issues relating to Singer. [ Id., 25:21-26:4; 30:12-14]. At the time Lair retained Lee, there was no pending or threatened litigation against Lair by Singer or anyone related to Singer. [Dkt. #90, Ex. 10, Lair Dep., 5:6-16].
The OCDLA does not have any materials in its possession relating to Singer, nor does it have any materials received directly from Steidley or Lair. [Dkt. #80, Ex. X, OCDLA Response to Subpoena].
Claremore Daily Progress Story on Giglio Allegations
On February 1, 2013, The Progress printed an article authored by Wilken titled "DA Steidley targets CPD Officer with Giglio." [Dkt. #80, Ex. T]. The article reported that Singer and the City of Claremore had filed motions to intervene in a Rogers County District Court case in which Steidley had mailed information to defense attorneys concerning Singer's role in the Sunday case. [ Id. ]. It quoted attorney Ballard as saying, "The city does not agree with the district attorney's allegations. We believe this matter should be decided by a neutral judge, rather than by unilateral action of the DA's office that will destroy a distinguished officer's career." [ Id. ].
Wilken later testified she obtained the Giglio materials via an internet link to court filings made by the City of Claremore in State of Oklahoma v. Jennie Runions, Rogers County Case No. CF-2012-655. [Dkt. #80, Ex. R, Wilken Dep., 70:6-8, 75:1-76:14]. She did not receive any of the Giglio materials from Steidley or Lair or from any other attorney in Steidley's office. [ Id., 76:15-77:2, 95:24-96:11]. The publisher of the Progress, Bailey Dabney ("Dabney"), confirmed that Steidley and Lair provided no Giglio materials to the Progress. [Dkt. #80, Ex. U, Dabney Dep., 115:XX-XXX-XX].
Wilken testified Lair had never made any disparaging comments about Singer to her. [Dkt. #80, Ex. R, Wilken Dep., 82:22-83:12]. With respect to the same question regarding Steidley, Wilken testified, "I believe that, during our conversation, her innuendo that John Singer was the person behind my stories would be construed as a negative comment towards him, yes." [ Id., 78:25-79:1; 79:23-80:9].
Singer's Employment with CPD
To date, Singer remains employed by the CPD. [Dkt. #19, Opinion and Order at 14 (noting that "Singer's employment has not been terminated; therefore, he has no basis to assert a deprivation of his property interest.")]. In a CPD media release dated February 22, 2013, Chief Brown stated a review of Singer's actions by a senior officer in an independent police department outside of Rogers County, performed at the request of CPD, had "completely exonerated [Singer] from any wrongdoing." [Dkt. #80, Ex. Y, CPD Press Release]. The media release stated:
Det. Singer was previously asked to not undertake any new investigations while this process played out. With today's ruling, there is no decision pending and any restrictions on Det. Singer's investigative activities are hereby lifted. Det. Singer is fully authorized to do the job for which he was hired-to investigate criminal activity and to work to keep our citizens safe. The City has full confidence in his ability to do so.
[ Id. ]. However, in his deposition on September 11, 2013, Chief Brown testified:
Q. If it's determined by a reviewing authority that Mr. Singer, in fact, did commit perjury in the Sunday case, what would be your action, if ...