Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-1207-GMS

PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiffs Dated: February 8, 2006

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................1 STATEMENT OF FACTS............................................................................................................................1 ARGUMENT................................................................................................................................................2 I. II. STANDARD OF REVIEW.................................................................................................2 THE FILING, PROSECUTION AND SETTLEMENT OF PLAINTIFF'S FIRST AMENDMENT FREE SPEECH RETALIATION LAWSUIT CHALLENGING THE ILLEGAL ACTIONS OF THE HIGHEST RANKING POLICE OFFICER IN THE STATE CONSTITUTES PROTECTED SPEECH AND PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES UNDER THE FIRST AMENDMENT...................................................................................................................3 DEFENDANTS' RETALIATION AGAINST PLAINTIFF WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS....................................................................................................3 A. B. The "Chill a Person of Ordinary Firmness" Standard ...........................................3 Defendants' Long Course of Retaliation Against Sgt. Foraker Would Chill a Person of Ordinary Firmness................................................... ..............................5 The Cases Cited by Defendants............................................................................ 9 Summary...............................................................................................................13

III.

C. D. IV.

THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM.....................................................................................14 A. Substantial or Motivating Factor..........................................................................14 1. 2. Motive in General....................................................................................14 Chaffinch's Involvement.........................................................................15 a. b. B. MacLeish's Participation...........................................................15 Chaffinch's Involvement, Authorization and Acquiescence......15

Same Decision Anyway.......................................................................................17 i

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V.

DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY........................17 A. B. Introduction..........................................................................................................17 The Facts Show that Defendants Violated Plaintiff's First Amendment Rights....................................................................................................................18 Plaintiff's First Amendment Rights Were Clearly Established...........................18 1. Free Speech.............................................................................................21 a. 2. The Retaliatory Harassment Line of Cases................................22

C.

Petition Clause .......................................................................................24

VI.

DEFENDANTS DEFAMED SGT. FORAKER WHEN THEY ACCUSED HIM OF NEGLECTING HIS DUTY BY FAILING TO ADEQUATELY CLEAN AND MAINTAIN THE FIREARMS TRAINING UNIT FACILITY........................................25 A. B. C. D. The Basics............................................................................................................25 Neglect of Duty....................................................................................................26 The Doctrine of Substantial Truth Does Not Apply in This Case.......................30 The Four Factor Test to Determine Whether a Statement is Fact or Opinion.....32 1. 2. E. Social Setting and Context......................................................................33 Objective Verification and Common Usage...........................................33

Plaintiff is Not a Limited Purpose Public Figure.................................................34

VII.

DEFENDANTS PLACED PLAINTIFF IN A FALSE LIGHT WHEN THEY ON MULTIPLE OCCASIONS TOLD THE MEDIA THAT HE WAS TO BLAME FOR THE SHUTDOWN OF THE FTU FACILITY WITHOUT REFERENCING THE MANY PROBLEMS ASSOCIATED WITH THE FACILITY, EVEN BEFORE HE BECAME THE SECTION CHIEF OF THE FTU, WHILE SIMULTANEOUSLY ORDERING BOTH FORAKER AND HIS SUPERIORS NOT TO SPEAK WITH THE MEDIA ON THE SUBJECT....................................................................................37 A. B. The Basics About False Light Law......................................................................37 The Factual Basis For This Tort..........................................................................38

CONCLUSION............................................................................................................................................39

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TABLE OF AUTHORITIES Cases Page

Abrams v. U.S., 250 U.S. 616 (1919)..........................................................................................................12 Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D.Del. 2005).............................................................................15 Agosto-de-Feliciano v. Aponte-Rogue, 889 F.2d 1209 (1st Cir. 1989) (en banc)........................................4 Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000)..................................................................................4,9,14 Anderson v. Creighton, 483 U.S. 635 (1987)..............................................................................................19 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)..................................................................................14,24 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990).............................................................................5 Assaf v. Fields, 178 F.3d 170 (3d Cir. 1999)..............................................................................................20 Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)........................................................................................17 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc)....................................................21 Baca v. Sklar, 398 F.3d 1210 (10th Cir. 2005)..............................................................................................4 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001)...............................................................9,14,21-22 Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570 (5th Cir. 2003)................................................5 Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963).....................................................................37-38 Bart v. Telford, 677 F.2d 622 (7th Cir. 1982)...............................................................................................4 Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005)....................................................................................4 Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002)........................................................................................18 Bennett v. Murphy, 2005 WL 78581 (3d Cir. Jan. 14, 2005).....................................................................18 Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987).........................................................................................3,20 Bhd. of R.R. Trainmen v. Va. Ex Rel. Va. State Bar, 377 U.S. 1 (1964)...................................................24 Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995)............................................................................................20 Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998)...............................................................................................4 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998).................................................................2 iii

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Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)......................................................................5,10,21,23-24 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005)..................................................................15 C.H. v. Olivia, 226 F.3d 198 (3d Cir. 2000) (en banc)................................................................................15 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).....................................................24 Carroll v. Pfeffer, 262 F.3d 847 (8th Cir. 2001)...........................................................................................4 Collins v. State of Ill., 830 F.2d 692 (7th Cir. 1987)....................................................................................4 Connolly v. Labowitz, 519 A.2d 138 (Del. Super. 1986)...........................................................................36 Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005).......................5 Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003).............................................................................5 Crawford-El v. Britton, 523 U.S. 574 (1998)..............................................................................................19 Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983).....................................................................................21 Doe v. Delie, 257 F.3d 309 (3d Cir. 2001)............................................................................................19-20 Ellis v. Crawford, 2005 WL 525406 (N.D.Tex. Mar. 3, 2005).....................................................................5 Elrod v. Burns, 427 U.S. 347 (1976).............................................................................................................6 Feldman v. Phila. Housing Auth., 43 F.3d 823 (3d Cir. 1994)...................................................................21 Foraker v. Chaffinch, C.A.No.02-302-JJF (D.Del. June 18. 2003)(slip op.)..............................................22 Gannett Co., Inc. v. Re, 496 A.2d 553 (Del. 1985).....................................................................................31 Garcia v. City of Trenton, 348 F.3d 726 (8th Cir. 2003)..............................................................................5 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)............................................................................32,34,37 Godbehere v. Phoenix Newspapers, Inc., 783 P. 2d 781 (Ariz. 1989)........................................................38 Good v. Dauphin County, 891 F.2d 1087 (3d Cir. 1989)......................................................................19-20 Guthridge v. Pen-Mod, Inc., 239 A.2d 709 (Del.Super. 1967)...................................................................37 Harlow v. Fitzgerald, 457 U.S. 800 (1982).................................................................................................19 Hicks v. Finney, 770 F.2d 375 (3d Cir. 1985).............................................................................................20 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005).....................................................................2-3,16,24 iv

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Hinshaw v. Smith, ­ F.3d ­, 2006 WL 212372 (8th Cir. Jan. 30, 2006).....................................................12 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993).........................................................................21 Hope v. Pelzer, 536 U.S. 730 (2002)...........................................................................................................19 Jackson v. Filiben, 281 A.2d 604 (Del. 1971).............................................................................................37 Jensen v. Potter, -- F.3d --, 2006 WL 224002 (3d Cir. Jan. 31, 2006).......................................................8 Johnson v. Lincoln Univ. of Com. System of Higher Educ., 776 F.2d 443 (3d Cir. 1985)........................21 Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F.Supp.2d 327 (D.N.J. 2000).....................................4 Kanaga v. Gannett Co., Inc., 687 A.2d 173 (Del. 1996)...................................................................25-26,32 Katzenmoyer v. City of Reading, 2001 WL 1132374 (E.D.Pa. Sept. 21, 2001)...........................................4 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)...............................................................................15 Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002)...........................................................................................4 Kelleher v. City of Reading, 2002 WL 1067442 (E.D.Pa. May 29, 2002)...................................................4 Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., 2006 WL 167443 (3d Cir. Jan. 24, 2006).............4 Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001)...........................................................................................20 Lewis v. Casey, 518 U.S. 343 (1996)..........................................................................................................20 Marrero v. Camden County Bd. of Social Serv., 164 F.Supp.2d 455 (D.N.J. 2001)....................................4 Martin v. Widener School of Law, 1992 WL 153540 (Del. Super. Jun. 17, 1992)...............................34-35 McDonald v. Smith, 472 U.S. 479 (1985)...................................................................................................24 McKee v. Hart, -- F.3d --, 2006 WL 27474 (3d Cir. Jan. 6, 2005).............................................9-10,22-24 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).............................................................................25,32 Monsanto v. Quinn, 674 F.2d 990 (3d Cir. 1982).......................................................................................21 Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999).............................................................................................5 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).........................................................14,21 NAACP v. Button, 371 U.S. 415 (1963).....................................................................................................24 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).........................................................................12,37

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Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000)...........................................................................17 O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989)..............................................................................21 Paff v. Kaltenback, 204 F.3d 425 (3d Cir. 2000)........................................................................................19 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)..........................................................................................21 Power v. Summers, 226 F.3d 815 (7th Cir. 2000).........................................................................................4 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)...........................................................................................21 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).......................................................2,16 Ramada Inns, Inc. v. Dow Jones & Company, Inc., 543 A.2d 313 (Del. Super. 1988).........................30-32 Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998)........................................................................25-26,31-34 Rankin v. McPherson, 483 U.S. 378 (1987)................................................................................................21 Read v. Carpenter, 1995 WL 945544 (Del.Super. June 8, 1995)................................................................26 Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969).......................................................................12 Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005).......................................................................................5 Riley v. Moyed, 529 A.2d 248 (Del. 1987)............................................................................................31-32 Rivera-Jimenez v. Pierluisi, 362 F.3d 87 (1st Cir. 2004)..............................................................................4 Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997)................................................................5,15 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)..................................................................................21 Rodriguez v. Torres, 60 F.Supp.2d 334 (D.N.J. 1999)..............................................................................4-5 Rogers v. Powell, 120 F.3d 446 (3d Cir. 1997)...........................................................................................17 Rutan v. Republican Party, 497 U.S. 62 (1990)............................................................................................3 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)............................................................................24 Saucier v. Katz, 533 U.S. 194 (2001)....................................................................................................17-18 Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069 (3d Cir. 1988)............................................................35 Shehee v. City of Wilm., 67 Fed.Appx. 692 (3d Cir. May 13, 2003)...........................................................4 Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001).............................................................................................4

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Snavely v. Booth, 176 A. 649 (Del.Super. 1935)........................................................................................34 Spence v. Funk, 396 A.2d 967 (1978)....................................................................................................25-27 Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989).........................................................20 Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000)........................................................................10-12 Sunkett v. Misci, 183 F.Supp.2d 691 (D.N.J. 2002).....................................................................................4 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).........................................................3-5,9-10,13-14,23-24 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002).........................................................................6,13 Trujillo v. Bd. of Educ. of Albuquerque Public Sch., 377 F.Supp.2d 994 (D.N.M. 2005)...........................5 Trzeciak v. Village of LaGrange, 2003 WL 1193319 (N.D.Ill. Mar. 13, 2003)...........................................5 United Mine Workers of America v. Ill. State Bar Ass'n, 389 U.S. 217 (1967)........................................24 U.S. v. Lanier, 520 U.S. 259 (1997)............................................................................................................20 U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995)....................................................................6 Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004)...............................................................4 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995).................................................................................21 We, Inc. v. City of Phila., 174 F.3d 322 (3d Cir. 1999)..............................................................................24 Whitney v. California, 274 U.S. 357 (1927)...............................................................................................12 Wilson v. Layne, 526 U.S. 603 (1999)..............................................................................................17,19-20 Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157 (1979).....................................................................35 Wright v. City of Phila., 409 F.3d 595 (3d Cir. 2005)................................................................................18 Wyshock v. Malekzadeh, 1992 WL 148002 (Del. Super. Jun. 10, 1992)...................................................38 X-Men Sec., Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999)........................................................................10-12 Zugarek v. Southern Tioga Sch. Dist., 214 F.Supp.2d 468 (M.D.Pa. 2002).................................................4 Constitutions, Statutes and Rules U.S. Const., Amend. I...........................................................................................................................passim State of Del. Const., Article I, Section 9.....................................................................................................25

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Fed.R.Civ.P. 56(c).........................................................................................................................................2 11 Del. C. § 9200....................................................................................................................................36,38 11 Del. C. § 9201....................................................................................................................................36,38 11 Del. C. § 9202....................................................................................................................................36,38 11 Del. C. § 9203....................................................................................................................................36,38 11 Del. C. § 9204....................................................................................................................................36,38 11 Del. C. § 9205....................................................................................................................................36,38 11 Del. C. § 9206....................................................................................................................................36,38 11 Del. C. § 9207....................................................................................................................................36,38 11 Del. C. § 9208....................................................................................................................................36,38 11 Del. C. § 9209....................................................................................................................................36,38 24 Del. C. § 1768.........................................................................................................................................36 Prosser and Keeton on the Law of Torts, § 111 (1971)..............................................................................25 Restatement (Second) of Torts § 559 (1977)..............................................................................................25 Restatement (Second) of Torts § 652D Comment A (1977).......................................................................38

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NATURE AND STAGE OF THE PROCEEDING Plaintiff relies upon the Nature and Stage of the Proceedings set forth in his Opening Brief in Support of his Motion for Summary Judgment. (D.I. 64). This is plaintiff's answering brief and appendix ("B___") in opposition to defendants' motion for summary judgment.1 SUMMARY OF THE ARGUMENT Defendants concede Sgt. Foraker clearly engaged in protected First Amendment activity by filing his earlier lawsuit and there is abundant record evidence for plaintiff to meet his causal burden of proving that his earlier lawsuit was a substantial or motivating factor in the retaliation against him. Additionally, defendants' long and continuing course of retaliatory harassment against Sgt. Foraker is more than sufficient to chill a person of ordinary firmness from exercising their First Amendment rights. Likewise, long established First Amendment retaliation law makes it clear that the defense claims of qualified immunity in this regard also are without merit. As to plaintiffs' supplemental state law claims, the record evidence establishes that defendants defamed Sgt. Foraker and placed him in a false light when they accused him of neglecting his duty by failing to clean and maintain the FTU which allegedly lead to the shutdown and destruction of that multimillion dollar firearms training facility. STATEMENT OF FACTS In the interests of brevity and judicial economy, plaintiff relies upon and incorporates by reference the exhaustive Statement of Facts contained in his opening briefs in this case and in the companion Price action, as well as his contemporaneously filed answering brief in opposition to the defense summary judgment motion in the companion Price action.

Defendants' summary judgment opening brief will be cited as "DOB" and plaintiff's own summary judgment opening brief will be cited as "POB."

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ARGUMENT I. STANDARD OF REVIEW. A motion for summary judgment shall be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boyle v. County of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998); Fed.R.Civ.P. 56(c). "All facts and inferences are construed in the light most favorable to the non-moving party." Boyle, 139 F.3d at 393. At summary judgment, "a court may not weigh the evidence or make credibility determinations; these tasks are left to the fact-finder." Id. To raise a genuine issue of material fact, "the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant, but simply must exceed the 'mere scintilla' standard." Id. (internal punctuation omitted). The Third Circuit recently revisited summary judgment standards in the First Amendment retaliation context. The recent opinion in Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005), held that when an employer moves for summary judgment, even the uncontradicted testimony of interested witnesses supporting the employer, such as supervisors, employees and other workers, should not be considered or otherwise weighed in the summary judgment balancing. "[W]hen evaluating a summary judgment motion a court should not consider even uncontradicted testimony of an interested witness where that testimony supports the movant." Hill, 411 F.3d at 131 n.22 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149-151 (2000)); see also Hill, 411 F.3d at 129 n.16. Thus, the Hill decision reaffirms long existing Third Circuit and Supreme Court precedent and dictates that the defense reliance herein upon testimony and affidavits from its own employees is misplaced at the summary judgment stage due to their obvious bias, fear of losing their jobs or other possible retaliation. Thus, their testimony should be excluded from the Court's analysis of summary judgment issues. Additionally, defendants' own testimony should

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be disregarded because, as defendants, they certainly are "interested witness[es]" under Hill. 411 F.3d at 131 n.22. II. THE FILING, PROSECUTION AND SETTLEMENT OF PLAINTIFF'S FIRST AMENDMENT FREE SPEECH RETALIATION LAWSUIT CHALLENGING THE ILLEGAL ACTIONS OF THE HIGHEST RANKING POLICE OFFICER IN THE STATE CONSTITUTES PROTECTED SPEECH AND PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES UNDER THE FIRST AMENDMENT. Defendants have conceded that the filing, successful prosecution and settlement of plaintiff's earlier First Amendment retaliation lawsuit against defendant Chaffinch constitutes protected activity under the First Amendment. (DOB at 15). No doubt this is because of the wealth of case law in this regard on this key legal issue. III. DEFENDANTS' RETALIATION AGAINST PLAINTIFF WOULD CHILL A PERSON OF ORDINARY FIRMNESS FROM EXERCISING THEIR FIRST AMENDMENT RIGHTS. Not surprisingly, no where in the defense brief have defendants discussed or even set forth the well-established legal standards governing adverse action in the First Amendment retaliation context. In the interest of actually discussing the relevant legal principles, that law is discussed below. A. The "Chill a Person of Ordinary Firmness" Standard. In the First Amendment context, "the constitutional violation is not in the harshness of the sanction applied, but in the imposition of any disciplinary action for the exercise of permissible free speech." Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987) (public employee context) (emphasis added). It "is implicated whenever a government employee is disciplined for his speech." Id. As the U.S. Supreme Court took pains to note (and as the Third Circuit has recognized), [T]he First Amendment ... protects state employees [not only from dismissals] but also from even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights. Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990) (public employee context) (internal punctuation omitted) (emphasis added); accord Suppan v. Dadonna, 203 F.3d 228, 234 (3d Cir.

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2000) (public employee context). "The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable." Suppan, 203 F.3d at 235 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)); cf. Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987) ("One does not have to be an employment expert to know that an employer can make an employee's job undesirable or even unbearable without money or benefits ever entering into the picture."). Adverse action is found if "retaliatory conduct [is] sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235 (internal punctuation omitted) (emphasis added); accord Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000); Shehee v. City of Wilm., 67 Fed.Appx. 692, 694 (3d Cir. May 13, 2003) (public employee context); see Lapinski v. Bd. of Educ. of the Brandywine Sch. Dist., 2006 WL 167443, *2 (3d Cir. Jan. 24, 2006) (public employee context) (reversing the district court for failing to apply the person of ordinary firmness standard in a First Amendment retaliation case).2 Put another way, the retaliatory actions must be sufficient to "cause reasonably hardy individuals" to refrain from protected activity. Agosto-de-Feliciano, 889 F.2d at 1217.3 This is an objective

Numerous other courts have adopted this standard. See e.g. Bennett v. Hendrix, 423 F.3d 1247, 1254-55 (11th Cir. 2005); Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004); Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001); Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); . Agosto-de-Feliciano v. Aponte-Rogue, 889 F.2d 1209, 1217 (1st Cir. 1989) (en banc); Bart, 677 F.2d at 625; Rodriguez v. Torres, 60 F.Supp.2d 334, 349 (D.N.J. 1999); Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F.Supp.2d 327, 337 (D.N.J. 2000); Katzenmoyer v. City of Reading, 2001 WL 1132374, *2 (E.D.Pa. Sept. 21, 2001); Marrero v. Camden County Bd. of Social Serv., 164 F.Supp.2d 455, 467 (D.N.J. 2001); Sunkett v. Misci, 183 F.Supp.2d 691, 708 (D.N.J. 2002); Kelleher v. City of Reading, 2002 WL 1067442, *5 (E.D.Pa. May 29, 2002); Zugarek v. Southern Tioga Sch. Dist., 214 F.Supp.2d 468, 476-77 (M.D.Pa. 2002). The person of ordinary firmness standard is an easier standard to meet than the statutorily based adverse employment action Title VII test. See Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004) ("the standard for showing an adverse employment action is lower in the First Amendment retaliation context than it is in other contexts (such as Title VII)."); Baca v. Sklar, 398 F.3d 1210, 1220 (10th Cir. 2005) ("we have repeatedly concluded that a public employer can violate an employee's First Amendment rights by subjecting an employee to repercussions that would not be actionable under Title VII."); Power v. Summers, 226 F.3d 815, 820-21 (7th Cir. 2000) (noting that the explicit Title VII
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test, not a subject one. Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003).4 "Determining whether a plaintiff's First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry focusing on the status of the speaker, the status of the retaliator, the relationship between the speaker and the retaliator, and the nature of the retaliatory acts." Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003); see Andrews v. City of Phila., 895 F.2d 1469, 1484 (3d Cir. 1990) ( "A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a [retaliation] analysis must concentrate not only on individual incidents, but on the overall scenario"). The retaliatory acts must "be more than de minimis or trivial." Brennan, 350 F.3d at 419. Importantly however, liability also may be established "based upon a continuing course of conduct even though some or all of the conduct complained of would be de minimis by itself or if viewed in isolation." Id. at 419 n.16; see Suppan, 203 F.3d at 235 (noting that what is "trivial in detail may have been substantial in gross"). Herein, looking at all the facts and the big picture continuing course of retaliatory harassment directed towards plaintiff, it is clear that plaintiff meets and far exceeds the chill a person of ordinary firmness standard. B. Defendants' Long Course of Retaliation Against Sgt. Foraker Would Chill a

statutory language upon which Title VII adverse action law is based is not present in 42 U.S.C. § 1983); Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570, 580 (5th Cir. 2003) (recognizing that "§ 1983's definition of adverse employment action may be broader than Title VII's definition"); Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); Ellis v. Crawford, 2005 WL 525406, *7-8 (N.D.Tex. March 3, 2005); Trujillo v. Bd. of Educ. of Albuquerque Public Sch., 377 F.Supp.2d 994, 1010-11 (D.N.M. 2005); Trzeciak v. Village of LaGrange, 2003 WL 1193319, *11-12 (N.D.Ill. March 13, 2003); Rodriguez, 60 F.Supp.2d at 345 n.10 (recognizing the distinction between the adverse action standards in the First Amendment and Title VII contexts); cf. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297-1300 (3d Cir. 1997) (setting forth the stricter Title VII standard). Because this is an objective standard, a plaintiff need not demonstrate that he actually was deprived of his First Amendment rights. See Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). Indeed, "[s]peech can be chilled, even when not completely silenced." Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005); see Constantine, 411 F.3d at 500 ("The cause of action targets conduct that tends to chill such activity, not just conduct that freezes it completely").
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Person of Ordinary Firmness. As discussed in greater detail in plaintiff's opening briefs in both this and the companion Price action, defendants' long and continuing course of retaliatory harassment and adverse actions against plaintiff include the following.5 · Launching a local, regional, national and international media campaign against Sgt. Foraker in which defendants blamed him for the destruction of the multi-million dollar firearms training facility. (POB at 15-19). This international media campaign has destroyed Sgt. Foraker's professional reputation, not just in the close-knit DSP and other police communities, but also in the larger national and international firearms industry. (Castro Expert Rpt. B10-17; Fini Expert Rpt. B31-34).6 Defendants' retaliatory media campaign was carried throughout the local print and television media. It was carried in American Police Beat Magazine a national and international police magazine, "a publication read by every major law enforcement agency in the United States." (American Police Beat article; B28-30; Fini Expert Rpt. p. 4; B34). They were spread throughout Sgt. Foraker's local community. (Price Inter. #3 p.11-13; A2276-78). Chaffinch and MacLeish's imposition of absolute gag orders to prevent Sgt. Foraker and his men from responding to Chaffinch's defamatory personal and professional attacks accusing them of cowardice, incompetence and of destroying the FTU. (POB at 16-17). This gag order was a clear unconstitutional prior restraint on plaintiff's First Amendment right to freedom of speech under the Supreme Court's decision in U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454, 468 (1995); see Swartzwelder v. McNeilly, 297 F.3d 228, 235-41 (3d Cir. 2002). Thus, defendants again violated and deprived Sgt. Foraker and his men of their First Amendment rights. As then Judge, now Justice Alito explained, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Swartzwelder, 297 F.3d at 241 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), and a fortiori, adverse action. As a matter of law, gagging an employee and depriving him of his First Amendment right to freedom of speech (especially when he is being publicly, falsely and maliciously attacked) is sufficient to chill a person of ordinary firmness and keep him from trying to exercise his rights. Defendants' material violation of the terms of Judge Farnan's reinstatement order that ended Sgt. Foraker's first lawsuit. (POB at 5-6). Defendants' material violation of the plain terms of the settlement agreement that ended Sgt. Foraker's first lawsuit. (POB at 5-6).

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Plaintiff acknowledges the overlap in retaliatory conduct between the Foraker and Price suits. As Sgt. Foraker testified, it is "hard to differentiate between the two because it's been constant retaliation since I spoke out. It's been retaliation against me and my men for speaking out and when we spoke out to the auditors they condemned us, without a doubt they condemned us." (Foraker 202; A775). This is another reason why the trial of both suits should be consolidated. As numerous representatives from within the firearms industry have told him, "Perception is reality and the perception is wrong doing." (Foraker Inter. #3 at p. 10; #13 at p. 31-32; A062,083-84; Price Inter. #3 p. 11; A2276).
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·

Diminishing Sgt. Foraker's job duties by throwing him out of Commanders and Section Chief's meetings and ordering that he never return. (POB at 24-26).7 Diminishing Sgt. Foraker's job duties and responsibilities by removing his position and title as a Section Chief. (Foraker 194-95; A773).8 In violation of historical practice, barring Sgt. Foraker from speaking at graduation ceremonies when he presented the `Best Shooter' award. He was the only officer presenting who was no longer allowed to speak, while all other officers were still permitted to give their traditional speeches when presenting their awards. (Foraker 197200; A774-75). Upon his reinstatement to the FTU, diminishing the prestige of his position by changing the chain of command so that he no longer reported directly to Major Eckrich and Lt. Col. MacLeish, but was now instead only reporting to a lieutenant and a captain. (G. Warren 33-44; A1930-33). Depriving him of the personnel needed to run the FTU, while previously giving such personnel to his predecessors. (Foraker Inter. #12 p. 29; Foraker 205; A81,776). Depriving him of the ability to make even the most minor of financial decision. While previously he had managed a $300,000 budget (Foraker 126-27; G. Warren 15; A1130,1165), plaintiff was now required to run items as minor as work t-shirt purchases by his commanders for approval. (Foraker Inter. #12 p. 29-30; Foraker 205, 213-14; A8282,776,778). Diminishing his command authority and autonomy by, for example, tasking his superior officers to sit in on FTU budget meetings, where this had never been done before. (Foraker 196-97, 213-16; G. Warren 39-40,43; A774,778-79,1932-33). Bad mouthing of Sgt. Foraker throughout the Division and claiming he does not care

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As Sgt. Foraker explained in his interrogatories, attendance at these meetings was one of the important responsibilities of his position as the NCOIC of the FTU during his prior tenure in this position. Denying Sgt. Foraker access to these meetings following his reinstatement has crippled his ability to positively impact the entire division with regard to any and all issues pertinent to firearms, force and tactical training and the FTU. As NCOIC of the FTU, Sgt. Foraker has a wealth of knowledge to share about firearms, tactical training and related issues that he is not being allowed to impart to the commanders and other section chiefs of the division. (Foraker Inter. #12 at p.28; Foraker 193-95; A80, 773). As to the false defense claim that there is no evidence that Sgt. Foraker is a section chief, this is addressed in plaintiff's opening brief at pages 24-25. The record there demonstrates that Major Baylor, Captain Davis and Sgt. Foraker all testified that, of course, Sgt. Foraker is the section chief of the FTU and every individual to previously hold his position was a section chief who attended these meetings. Only MacLeish denies this, yet contradictorily however, he and all defendants previously admitted in their Answer that Sgt. Foraker was in fact a section chief. (Foraker 2 Compl. & Ans. ¶ 3; A910,37).
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about health and safety dangerously undermines Sgt. Foraker's command authority in the eyes of all the Troopers who he is expected to train and whose respect is essential in the dangerous world of tactical firearms training. At the FTU, safety is paramount and if those training do not respect the NCOIC's commands, safety is jeopardized.9 · Ordering superior officers to "micro-manage" and nit-pick him in an effort to pressure him to retire. (Foraker Inter. #12 p. 29, #15 p.35-36; Foraker 196-97, 205-16; A81, 8788, 774,776-79). Notably, both of the Captains that defendants tasked to micro manage and harass Sgt. Foraker were rewarded with promotion to Major by MacLeish. (Foraker 205; A776).10 Publicly trying to dissuade Capt. McQueen from using Sgt. Foraker as his second at the funeral of a fallen comrade. This sends the clear message to other officers that associating with Sgt. Foraker is frowned upon. (McQueen 8-12,14,17,21-22,24,28; Foraker 189-90, 203; A1542-47, 772, 775).11 Sending him for multiple fitness for duty exams, despite the fact that he continually passed each exam he was sent for. By way of analogy, Sgt. Foraker was repeatedly found to not have cancer. Yet instead of being happy about the fact that he had received a clean bill of health, defendants continued and kept sending him for more and more of the same fitness for duty examinations. All total, they sent him for three such retaliatory fitness for duty examinations until they finally grew frustrated and gave up. (Price OB at 15-16; Foraker Decl. ¶ 9; Compl. & Ans. ¶ 63-64; A2987-88, 23-25). Repeatedly withholding exculpatory medical records from DSP physicians when sending Sgt. Foraker for these fitness for duty and other medical examinations. (Price OB at 16 n.14). Sending Sgt. Foraker and his men for audiological and other hearing testing when they had only asked for blood and urine testing to detect the presence of heavy metal exposures. In addition to independently being sufficient to deter a person of ordinary
9

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In addition to badmouthing Sgt. Foraker within the DSP, defendants and their agents also regularly attack Sgt. Foraker in front of firearms representatives. For example, one of defendants' own attorneys makes it a point to belittle and attack Sgt. Foraker in front of industry representatives, calling him a "bad penny [who] just keeps showing up." (Foraker Inter. #13 at 32-33; A084-85; Foraker 238-39; A784). To the extent defendants claim there is no causal or logical nexus between this retaliation and defendants, the Third Circuit's recent decision in Jensen v. Potter, ­ F.3d ­, 2006 WL 224002, *5 (3d Cir. Jan. 31, 2006), is instructive and defeats defendants' claim. There, now Justice Alito explained that even when harassment like this, "[s]tanding alone ... [might] contain no indicia of retaliation," in light of the overall course of harassment and big picture of threats and hostility being directed towards plaintiff and his men, "this intervening antagonism tends to show that these seemingly unrelated incidents were components of an integrated pattern of retaliation." Id. In light of Chaffinch's angry visual reaction to Capt. McQueen's request and the hot topic of conversation that this angry visual reaction became among the officer's present (McQueen 14-17,24; A1544, 1546), this only further serves to undermine Sgt. Foraker's authority and respect in eyes of the many officers in this paramilitary organization.
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firmness from exercising their First Amendment rights, such an "unusual" (Dillman 149-151, 159, 157-58, 3-5,110-13; A2525-27,2535,2533-34,2379-81,2486-89), course of conduct makes it clear that this was done in order to find a pretext to retaliate against Sgt. Foraker and his men. (Price OB at 15; Foraker Decl. ¶¶ 4-7; A2987). · Refusing to accommodate and take care of the men serving under his command as a means to get back at Sgt. Foraker for his protected speech. (Price OB at 17-23).12 Lastly, this entire course of retaliatory conduct against Sgt. Foraker has absolutely devastated him. (Foraker Inter. #3; A56-63). This long course of retaliatory harassment has psychologically destroyed Sgt. Foraker. As defendants neglect to mention in their brief, Sgt. Foraker is currently on light duty after being declared psychologically unfit for duty in the fall of 2005 as a direct and proximate result of the harassment and other retaliation against him in the workplace. (Unfit for Duty Medical Records; B1-3,25). As the foregoing 2 ½ page list makes clear, under both Suppan, 203 F.3d at 234-35, and McKee v. Hart, ­ F.3d ­, 2006 WL 27474, *3-5 (3d Cir. Jan. 6, 2005), this long "campaign of retaliatory harassment," against Sgt. Foraker is more than "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 234-35. At the very least, given that this is a factual determination, see id. at 235; Allah, 229 F.3d at 225; Baldassare, 250 F.3d at 195, it is up to a jury of plaintiff's peers to determine this issue.13 C. The Cases Cited by Defendants. Defendants claim that each act of retaliatory harassment against plaintiff, by itself, does not amount to adverse action. Although plaintiff would be more than happy to expound on this point and explain in excruciating detail how each and every act is in fact sufficient to deter a person of ordinary firmness, the law simply does not require this. Instead, the big picture of the long campaign of retaliatory harassment against Sgt. Foraker and his men is independently sufficient as a whole to constitute adverse action under both Suppan, 203 F.3d at 234-35, and McKee, ­ F.3d ­, 2006 WL 27474, *3-5. For as the Third Circuit has repeatedly held, liability also may be established "based upon a continuing course of

·

In light of the type of honorable man and outstanding Trooper that Sgt. Foraker is, the retaliation against his men, the Troopers serving under his command who wanted nothing more than to work in a safe environment, strikes at him almost more than anything. Judge Farnan submitted this precise question to the jury at the first Foraker trial. (Special Verdict Form ¶ 3 - Chaffinch ex. 1; A477).
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conduct even though some or all of the conduct complained of would be de minimis by itself or if viewed in isolation." Brennan, 350 F.3d at 419 n.16; see Suppan, 203 F.3d at 235 (noting that what is "trivial in detail may have been substantial in gross"). Thus, this big picture approach dooms the defense effort of attacking each individual act of retaliation. The retaliation cannot be viewed in isolation. The defense efforts to shoehorn plaintiff's case into the factual setting of McKee, 2006 WL 27474, also do not survive scrutiny. In McKee, the plaintiff was only able to point to three comments that the defendants made to him as being retaliatory adverse action, but he could not point to anything else or to any concrete acts. Notably, these comments by his employer were comments urging him not to lose his focus as he was neglecting to do the job that had been assigned to him. Id. at *5, 6. Consequently, the Third Circuit simply held that, as a matter of law, these three comments by themselves were an insufficient basis to establish adverse action. Id. at *4. The Circuit distinguished Suppan where the plaintiffs were subjected to a course of retaliatory harassment for more than a year and contrasted this with the constructive criticism the McKee plaintiff received and found them to be of a qualitatively different nature. Id. at *5. As discussed above, like the plaintiff in Suppan, Sgt. Foraker suffered a long course of retaliatory harassment more than sufficient to meet and far surpass the adverse action threshold. Similarly, the defense claim that plaintiff suffered mere criticism, not actionable under McKee; Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000); and X-Men Sec., Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999), also is without merit. (DOB at 16-19). First, as discussed above, the adverse action was not limited to mere criticism. Instead, it is the long course of retaliatory harassment which is actionable. But second, plaintiff did not suffer from mere criticism. The criticism discussed in McKee, 2006 WL 27474, *2, was directed from the defendant directly to the plaintiff in one on one conversations with his supervisor. Neither McKee nor any other of the cases cited by defendants deal with a defendant with malicious motives who publicly

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declared that "I'm going to get that son of a bitch" (Dixon 17-18,77; A527-28,542), and who proceeded to launch an unprecedented local, regional, national and international media campaign where he threw plaintiff and his men "under the bus" (Baylor 417; A406), and blamed them for destroying a multi-million dollar firearms training facility, false allegations which that same defendant himself now admits he knows are false. (See POB at 20; Chaffinch 56-58; A439-40). In other words, the attacks and very public criticism in our present case are of a qualitatively different and far more serious and widespread nature than that present in McKee. But additionally, and much more fundamentally, neither Suarez, 202 F.3d 676, nor XMen, 196 F.3d 56, (which arise in the Fourth and Second Circuits respectively - Circuits much less welcoming of civil rights claims than our own) are cases that occur in the employment law context. Instead, they both address speech by a government employee or official about a private company or citizen, a context in which much different interests are at stake.14 Because they do not occur in the employment law context, a different mode of analysis must apply and the mode of analysis applied in both Suarez and X-Men does not carry over into the public employer/employee free speech retaliation context. In a portion of the opinion which defendants neglected to discuss, X-Men itself discusses this distinction. Cases holding that a decisionmaker may not take action for impermissible reasons do not provide the proper analytical framework for claims against persons who are not decisionmakers, but merely advocates. X-Men, 196 F.3d at 70 (emphasis added). [S]peech by persons who are not decisionmakers and who merely engage in advocacy without threats, intimidation, or coercion is protected by the First Amendment. Id. at 71 (emphasis added). As the Second Circuit in X-Men took great pains to point out, a different mode of analysis applies in employer/employee context when the actions of a

Their requirements that even defamatory speech contain a threat, coercion or intimidation arises from the recognition that the government has a strong interest in protecting citizens and consumers from unscrupulous companies and affiliated private citizens and that government officials have independent free speech rights when speaking in public.

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decisionmaker are being challenged, versus in a context outside of the employer/employee relationship.15 The Eighth Circuit recently addressed this same point. See Hinshaw v. Smith, ­ F.3d ­, 2006 WL 212372, *9 (8th Cir. Jan. 30, 2006) (adopting the reasoning of X-Men and discussing how a different test applies to speech by employer decisionmakers than to "speech by persons who are not decisionmakers"). It is undisputed in our present case that defendants Chaffinch and MacLeish both are the key decisionmakers who made all adverse retaliatory actions that plaintiff is challenging in this lawsuit. Thus, defendants' efforts to force this square legal peg into a round legal hole are inappropriate.16 Additionally, X-Men, Suarez and their progeny rest on the implicit assumption that a private citizen who is so criticized by a government official, even when defamed, has the fundamental First Amendment right to speak out and respond. In other words - that the remedy for false speech is more speech. Let the marketplace of ideas sort it all out.17 But that is not our case. Out of fear the defendants knowing that their ideas have absolutely no redeeming value whatsoever, have roundly rejected the marketplace of ideas approach and instead prefer to publicly defame plaintiff and his men, and then impose a cowardly gag order so that they cannot respond and defend themselves. As discussed above, such an unconstitutional prior restraint and

15

No doubt this is due to the inherently coercive nature of the employer/employee relationship.

Even assuming arguendo that this inapposite line of cases applied, it is clear that defendants' speech did in fact contain a threat or intimidation. Chaffinch was clearly telling plaintiff to back off and stop speaking out. If he did not do so, Chaffinch would do even worse things to him in order to fulfill his bloodlust for vengeance. (See Dixon 71-72; A1586; Dixon 24,44; A529,34). See Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes dissenting) ("the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market."); Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis and Holmes concurring) (when an noxious idea rears its ugly head, instead of government's heavy hand, "the remedy to be applied is more speech, not enforced silence."); Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969) ( "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail...."); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) ( "The First Amendment . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.") (internal punctuation omitted).
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deprivation of plaintiff's First Amendment rights is an independent and extremely weighty adverse action which "unquestionably constitutes irreparable injury." Swartzwelder, 297 F.3d at 241. D. Summary. As the evidence listed above (and the causal evidence discussed below) makes clear, by embarking on (1) their long continuing course of retaliatory harassment, and (2) their international media campaign in which they publicly blamed Sgt. Foraker and his men for destroying a multi-million dollar firearms training facility, defendants intended to maliciously punish and humiliate Sgt. Foraker for exercising his First Amendment rights. They intended to ensure that they exacted a heavy price from him for daring to successfully challenge Chaffinch in court. Such a long course of retaliatory harassment and defamation is certainly sufficient to make a person of ordinary firmness think twice about exercising their First Amendment rights. Any reasonably hardy individual would think twice about filing a lawsuit if they knew that defendants later would publicly destroy them, all the while gagging and harassing them to the point of breaking down psychologically and becoming unfit for duty as a result. Indeed, who would dare to stand up and file a lawsuit if they know that the defendant then will destroy their reputation in the close-knit police community, destroy their reputation in the national firearms industry and ensure that the plaintiff's future plans to work in the firearms industry are forever destroyed? Importantly however, the adverse action standard is satisfied if the "retaliatory conduct [is] sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235. All that is needed is a chill, and the defense efforts certainly meet this standard. To the extent that the Court has any doubts in this regard, again, the question of whether a retaliatory action would chill a person with an ordinary backbone from exercising their rights is uniquely a question to be resolved by a jury. 18 Additionally, in light of the standard of review in which plaintiff receives all the inferences, it is

18

As Judge Farnan did in the first trial. (Special Verdict Form ¶ 3 - Chaffinch ex. 1; A477).

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clear that plaintiff has met his burden and that summary adjudication for lack of adverse action is inappropriate. For the above mentioned reasons, there is overwhelming record evidence of adverse action. Accordingly, defendants' motion for summary judgment on this ground should be denied. IV. THE RECORD IS OVERFLOWING WITH CAUSAL EVIDENCE WHICH DEMONSTRATES THAT PLAINTIFF'S PROTECTED FIRST AMENDMENT ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM. A. Substantial or Motivating Factor. To the extent that defendants allege there is no evidence for plaintiff to meet his burden of proving substantial or motivating factor under Suppan, 203 F.3d at 234-35, and Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), plaintiff notes and incorporates by reference the extensive discussion of causal evidence set forth in his opening brief and in the opening brief in the companion Price case. 1. Motive in General. Importantly, to the extent defendants allege that their motives were pure, and that they were simply taking actions that they had a plain legal right to take, it is clear that they have missed a very fundamental point of First Amendment jurisprudence. It has long been established that "an otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment speech." Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997). As far as it relates to the First Amendment, "motives of government officials are indeed relevant, if not dispositive, when an individual's exercise of speech precedes government action affecting that individual." Id. "[G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah, 229 F.3d at 224-25. Motives are key in this context. That is why causal determinations such as this are reserved for the province of the fact-finder. See Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir. 2001). Thus, to the extent defendants claim that their

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motives are pure, this issue is certainly not ripe for summary adjudication in their favor in light of the overwhelming record evidence to the contrary. Accordingly, summary judgment should be denied to defendants on this point. 2. Chaffinch's Involvement. Defendants appear to contest that they had any personal involvement in any of the adverse action that plaintiff suffered. (DOB at 18-19). But plaintiff only has to initially demonstrate that the defendants knew of the protected activity. Keenan v. City of Phila., 983 F.2d 459, 466 (3d Cir. 1992). It is undisputed that defendants knew of Sgt. Foraker's earlier successful lawsuit. (Foraker 2 Compl. & Ans. ¶ 18; MacLeish 15-16,25; Chaffinch 17; A8,52,39,97,99,429). Supervisor liability also may be established 1) "through allegations of personal direction or of actual knowledge and acquiescence," or 2) "through proof of direct discrimination by the supervisor." Id. Importantly, "[w]here a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor 'acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct." Robinson, 120 F.3d at 1294; accord Adkins v. Rumsfeld, 389 F.Supp.2d 579, 585-86 (D.Del. 2005). "To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it." C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (citing C.H. v. Olivia, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)). a. MacLeish's Participation. In light of the record cited in plaintiff's opening brief, MacLeish's involvement in the retaliatory actions is not at issue, since he participated in the violations.19 b. Chaffinch's Involvement, Authorization and Acquiescence.

To the extent defendants hang their hat on the fact that MacLeish was not present for the April 6, 2004 media tour (D