Free Opening Brief in Support - 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 OPENING BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND II

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: January 25, 2006

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 302 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............................................................................................................................2 A. Sgt. Christopher D. Foraker................................................................................................2 1. 2. B. Sgt. Foraker Performs His Duties Admirably and is an Exceptional Trooper.......3 Sgt. Foraker's History With the DSP.....................................................................3

Sgt. Foraker's Protected First Amendment Activity...........................................................4 1. 2. 3. The Initial Lawsuit.................................................................................................4 The Unprecedented Jury Verdict...........................................................................5 The Settlement and Reinstatement.........................................................................5

C. D.

Defendants' Open Vendetta Against Sgt. Foraker..............................................................6 The Firearms Training Unit.................................................................................................7 1. The Longstanding Health and Safety Concerns at the FTU...................................7 a. b. c. The System "Will Inevitably Fail."...........................................................7 A Representative Sampling of Problems...................................................8 Problems Revealed by Internal DSP Documents......................................9 (1). (2). (3). (4). 2. Problems Under Sgt. Fitzpatrick..................................................9 Problems Under Sgt. Parton.......................................................10 Problems During Sgt. Foraker's First Tenure at the FTU..........11 Problems Under Sgt. Ashley......................................................12

The FTU Contains 700 Times the Safe Level of Lead in the Air........................12

E. F.

The Disastrous Conditions at the FTU on Sgt. Foraker's First Day Back........................13 Sgt. Foraker Speaks Out And Sounds the Alarm..............................................................14

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G.

Defendants Attack and Publicly Blame Sgt. Foraker for Destroying the FTU.................15 1. 2. Defendants Decide to Give the Media Tours of the FTU....................................15 Before the Tour, Chaffinch Brags that He is Going to "Stick It To" and "Put It On" Sgt. Foraker.......................................................................................15 Chaffinch Blames Sgt. Foraker ...........................................................................15 Defendants Gag Sgt. Foraker and Bar Him From Responding to These Defamatory Attacks..............................................................................................16 World-Wide Publication of These Defamatory Attacks......................................17 Chaffinch Brags that "I Got Them Back."...........................................................17 a. b. c. Chaffinch Brags to Major Baylor............................................................17 Chaffinch Brags to Capt. Conley............................................................18 Major Baylor, Capt. Conley and Capt. Dixon Discuss Chaffinch's Actions and Words..................................................................................18

3. 4.

5. 6.

7. H.

Major Baylor Urged Chaffinch to Retract His Accusations................................19

Defendants' Allegations of Blame Are Malicious Falsehoods.........................................19 1. 2. 3. Chaffinch Has Admitted that His Allegations Are False.....................................20 The FTU is a Highly Technical and Specialized Facility....................................21 Sgt. Foraker's Evaluation for this Period of Time...............................................22 a. b. c. 4. His Sterling Safety Record......................................................................22 High Praise for His Care for Divisional Equipment...............................23 High Marks Across the Board.................................................................23

Politics Are To Blame, Not Sgt. Foraker.............................................................23

I.

Adverse Action..................................................................................................................24 1. Defendants Diminish His Job Duties and Violate the Reinstatement Order.......24 a. b. Sgt. Foraker is the Section-Chief of the FTU..........................................24 Sgt. Foraker Previously Attended Section-Chief's Meetings.................24 ii

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c.

Defendants Throw Him Out of the Meeting and Order That He Never Return...........................................................................................25

2. J.

More Adverse Actions.........................................................................................26

Evidence of Causation.......................................................................................................26 1. 2. Knowledge of the Protected Conduct...................................................................26 Demonstrated Anger, Hostility and Antagonism - Defendants Loathe Sgt. Foraker..................................................................................................................26 a. Defendants' Close Friendship Also Gives Rise To a Motive to Retaliate...................................................................................................26 Chaffinch Is "Very Vindictive" and Demands "Blind" Personal Loyalty.....................................................................................................27 Troopers Also Fear Chaffinch Because Of His Powerful Political Connections.............................................................................................27 Fear of the Good Old Boy Network........................................................28

b.

c.

d. 3. 4. 5. 6. 7.

Temporal Proximity.............................................................................................28 Intentional Destruction of Evidence.....................................................................28 Violations of Laws, Rules, Policies and Procedures............................................29 Disparate Treatment.............................................................................................29 Pretext and Coverup.............................................................................................29 a. b. c. d. e. f. Hostility Towards Sgt. Christopher Foraker...........................................29 Hostility Towards Captain Davis and Captain Warren...........................29 Hostility Towards Captain Conley..........................................................30 Hostility Towards Master Corporals Price and Warren..........................30 Hostility Towards the Filing of Lawsuits in General..............................30 Summary of this Evidence......................................................................31

8.

Falsehoods............................................................................................................31

ARGUMENT..............................................................................................................................................31 iii

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I. II.

STANDARD OF REVIEW...............................................................................................31 PLAINTIFF ENGAGED IN FIRST AMENDMENT PROTECTED SPEECH BY FILING AND SUCCESSFULLY PROSECUTING HIS EARLIER LAWSUIT, AND THAT LAWSUIT WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM.....................................................................................31 A. Protected Activity.................................................................................................31 1. Matter of Public Concern........................................................................31 a. b. The Content Exposed Wrongdoing............................................32 Form and Context.......................................................................32 (1). (2). Police Department Context...........................................32 Witness Intimidation and the Judicial Forum Context..........................................................................32 The Media Attention Context.......................................34

(3). 2. B.

Balancing of Interests..............................................................................34

Substantial or Motivating Factor..........................................................................35 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Knowledge of Protected Conduct...........................................................35 Demonstrated Anger, Hostility and Antagonism....................................35 Temporal Proximity................................................................................36 Violations of Law, Policies and Procedures...........................................36 Disparate Treatment................................................................................36 Pretext and Coverup................................................................................36 Falsehoods...............................................................................................37 Intentional Destruction of Key Evidence................................................37 The Big Picture........................................................................................37 Summary..................................................................................................38

C.

Same Decision Anyway Affirmative Defense.....................................................38

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III.

PLAINTIFF ENGAGED IN FIRST AMENDMENT PROTECTED PETITIONING OF THE GOVERNMENT FOR REDRESS OF GRIEVANCES AND HIS LAWSUIT WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE RETALIATION AGAINST HIM.....................................................................................39 A. B. C. D. The Big Picture.....................................................................................................39 The Activities Protected.......................................................................................39 The Specifics........................................................................................................40 Substantial or Motivating Factor and Same Decision Anyway...........................40

CONCLUSION............................................................................................................................................40

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TABLE OF AUTHORITIES Cases Page

Adkins v. Rumsfeld, 389 F.Supp.2d 579 (D. Del. 2005).......................................................................35-36 Adler v. Pataki, 185 F.3d 35 (2d Cir. 1999)................................................................................................38 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)..................................................................................39-40 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)...........................................................................37 Arlio v. Lively, 392 F.Supp.2d 317 (D.Conn. 2005)...................................................................................37 Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997) (en banc)....................................................34 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001)............................................................................32 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994).................................................................................35 Boyle v. County of Allegheny, Pa., 139 F.3d 386 (3d Cir. 1998)...............................................................31 Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998).........................................................................38 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)..............................................................................36,39-40 Briscoe v. LaHue, 460 U.S. 325 (1983)......................................................................................................33 Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)....................................................39 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005)...............................................................................32 Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991)...................................................................................38 City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521 (2004)....................................................................34 Connick v. Myers, 461 U.S. 138 (1983)......................................................................................................32 Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003)..........................................................35 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)...........................................................................................36 Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1994).......................................................................36 Foraker v. Chaffinch, C.A.No. 02-302-JJF (D.Del. June 17, 2003) (slip op.)...........................................4-5 Green v. Phila. Hous. Auth., 105 F.3d 882 (3d Cir. 1997)..........................................................................33 Hill v. City of Scranton, 411 F.3d 118 (3d Cir. 2005)......................................................................31,35,40

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Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993)....................................................................32,34 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003)...................................35 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989).........................................33 Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997).............................................................36 Keenan v. City of Phila., 983 F.2d 459 (3d Cir. 1992)...............................................................................35 Konits v. Valley Stream Central High Sch. Dist., 394 F.3d 121 (2d Cir. 2005).........................................32 McDonald v. Smith, 472 U.S. 479 (1985)...................................................................................................39 McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005).....................................................................................34 Miller v. Cigna, Corp., 47 F.3d 586 (3d Cir. 1995) (en banc)....................................................................35 Mitchell v. Street, 2005 WL 1993774 (E.D.Pa. Aug. 16, 2005).................................................................35 Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)..............................................................35 Nicholas v. Pa. State Univ., 227 F.3d 133 (3d Cir. 2000)...........................................................................38 O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989)..............................................................................34 Ostad v. Oregon Health Sciences Univ., 327 F.3d 876 (9th Cir. 2003)......................................................38 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)..........................................................................................34 Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004).........................................................................................39 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)......................................................................................31,33 Rankin v. McPherson, 483 U.S. 378 (1987)................................................................................................34 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)..........................................................37 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)..................................................................................34 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)............................................................34-36,39-40 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc)............................37 Springer v. Henry, -- F.3d --, 2006 WL 121942 (3d Cir. Jan. 18, 2006).....................................................31 Springer v. Henry, 2002 WL 389136 (D.Del. March 11, 2002).................................................................34 Stanley v. City of Dalton, Georgia, 219 F.3d 1280 (11th Cir. 2000)..........................................................38 vii

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Stewart v. Rutgers, the State Univ., 120 F.3d 426 (3d Cir. 1997)..............................................................36 Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000).......................................................................................35 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002)............................................................................33 Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23 (1st Cir. 2004)...............................................................38 Village of Arlington Heights v. Metropolitan Hous. Develop Corp., 429 U.S. 252 (1977).......................36 Waters v. Churchill, 511 U.S. 611 (1994)...................................................................................................34 Watters v. City of Phila., 55 F.3d 886 (3d Cir. 1995).................................................................................34 We, Inc., v. City of Phila., 174 F.3d 322 (3d Cir. 1999).............................................................................40 Wilcher v. City of Wilm., 60 F.Supp.2d 298 (D.Del. 1999).......................................................................32 Williams v. Hepting, 844 F.2d 138 (3d Cir. 1988)......................................................................................33 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).........................................................................35 Yalowizer v. Town of Ranchester, Wyoming, 18 Fed.Appx. 745 (10th Cir. 2001)...................................38

Constitutions, Statutes and Rule U.S. Const., Amend. I...........................................................................................................................passim Fed.R.Civ.P. 8(c).........................................................................................................................................38 Fed.R.Civ.P. 56(c).......................................................................................................................................31

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NATURE AND STAGE OF THE PROCEEDING This is a civil action for compensatory and punitive damages and for injunctive relief for retaliatory violations of the Speech and Petition Clauses of the First Amendment, and for supplemental state law claims. In June of 2003 Plaintiff obtained a jury verdict, and an award of $100,120 in compensatory and punitive damages, against defendant Chaffinch for multiple violations of his free speech rights. On December 1, 2003, under a Stipulated Order of this Court plaintiff was reinstated to his previous position. But upon his reinstatement defendants then set out to drive plaintiff from his employment and within three months in early 2004, orchestrated a local, national and international media campaign riddled with malicious falsehoods which have totally destroyed plaintiff's professional reputation. The record includes the depositions of defendant Ret. Col. L. Aaron Chaffinch, defendant Col. Thomas MacLeish, Major Randall Hughes, Ret. Major David Baylor, Ret. Major Joseph Forester, Capt. Glenn Dixon, Capt. Ralph H. Davis, III, Capt. Nathaniel McQueen, Jr., Ret. Capt. Gregory A. Warren, Lt. Joseph Aviola, plaintiff, his interrogatory answers, various documents and the Complaint and Answer. ("Compl. & Ans.").1 This is plaintiff's opening brief and appendix in support of his motion for summary judgment on Counts I and II - his First Amendment retaliation claims. SUMMARY OF THE ARGUMENT Plaintiff engaged in First Amendment protected activity by filing and successfully prosecuting his earlier First Amendment lawsuit challenging defendant Chaffinch's illegal

The record includes deposition and trial testimony from Foraker1, the companion case of Price, et al. v. Chaffinch, et al., as well as Dillman v. Chaffinch, et al., C.A. No. 02-509- KAJ, and Conley v. Chaffinch, et al., C.A.No. 04-1394-GMS. References to Plaintiff's Answers to Interrogatories in the companion Price case will be referenced as "Price Inter. # __" and Plaintiff's Answers to Interrogatories in the present case will be referenced as "Foraker Inter. # __". References to pleadings in the earlier Foraker case will be referenced as "Foraker 1 Compl. & Ans. ¶ 4" and references to the present action will be cited as "Foraker 2 Compl. & Ans. ¶ 3".

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conduct. In light of the overwhelming record evidence, as a matter of law, no reasonable jury could conclude that plaintiff's lawsuit did not play a substantial role in the retaliation against him. Because defendants have waived their Mt. Healthy affirmative defense, summary judgment should be entered against them on Counts I and II. STATEMENT OF FACTS A. Sgt. Christopher D. Foraker. Plaintiff is a Sergeant and 20 year veteran of the DSP. (Foraker 2 Compl. & Ans.¶ 3; Foraker 5; A10,37,1100). As defendants tellingly admitted in the first case, he "is an excellent police officer." (Foraker 1 Compl. & Ans. ¶ 4; A815,827). Moreover, numerous Captains, Majors, and the current Lt. Col. and Colonel have consistently testified over time that Sgt. Foraker is a consummate professional who receives awards and accolades wherever he goes, including the DSP's "Exceptional Performance Award" for his work at the Firearms Training Unit ("FTU").2 As defendant MacLeish testified during the first suit in 2002, "Chris is a good troop," (MacLeish 60,36; A1006,1000), "the Foraker name carries a good reputation," (MacLeish 56; A1005), and he is "the kind of person you would want to have under your command." (MacLeish 60,63-64 36; A1006-07,1000 ).3 In retired Major Forester's words, "I have nothing but good things to say about [Sgt. Foraker], anything, whether on the job or off the job" - he "has a reputation of the highest order." (Forester 51; A616). As the present Lt. Col. testified, Sgt. Foraker is "a man of very high integrity, truthfulness and character" (Seifert 46; A959), three qualities which are unquestioned by his commanders. (Papili 87-88, 15; Swiski 65; MacLeish 63; Seifert 46; Yeomans 25-26; Warren 27-28; Davis 17; McQueen 7,26,32-33; Forester 51; A873-74,855,980,1007,959,1181,1168,487,1542,1547-48,616).

(Marcin 27, 31-32, 40, 47; Baylor 5,68; Papili 17-20; Swiski 61; MacLeish 33-36,56-57,60,6364; Seifert 9-13; Mergenthaler 21-24; Mergenthaler ex.1; Warren 26-27; Foraker 11,93,95-96,98-99, 157158;McQueen 33; Forester 51,108-09; A1040-41,1043,1045,1013,1029,856-57,979,1000,1005-07,95051,1147,1152-59,1168,1101,1122-23,1138,1548,616,674). At his 2005 deposition, although refusing to lavish the same praise on Sgt. Foraker, MacLeish begrudgingly admitted that Sgt. Foraker is "a good trooper" and "a good officer." (MacLeish 32; A101).
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1. Sgt. Foraker Performs His Duties Admirably and is an Exceptional Trooper. Sgt. Foraker's most recent performance evaluation (12/1/03 - 9/3/04), which addresses the very time period at issue in this case, is in the record and speaks volumes about the kind of Trooper and man that he is. His work is always of the "highest calib[er]." (A841). "Sgt. Foraker is clearly a valuable asset to the Division of State Police." (A842) (emphasis added). He "Consistently and Substantially Exceeds Expectations" as to his "Contribution to [the] Organization." (A836). Despite the fact that he has "one of the most stressful jobs in the Division" (CF11), "Sgt. Foraker has performed [his] duties admirably, always keeping the safety of the FTU staff and those training under his command paramount." (A841) (emphasis added). He "Far Exceeded Expected Results" in his duty to "[m]aintain a safe training environment." (A838). He is a "skilled communicator" (A841) who "possesses excellent organizational skills and employs these skills to accomplish Divisional and Academy goals." (A842). On a "[d]aily" basis, "Sgt. Foraker makes a positive impact on the Delaware State Police, numerous federal and local law enforcement agencies, and the citizens of Delaware." (A842). There is no doubt that Sgt. Foraker is an exceptional leader and supervisor and demonstrated these abilities on a daily basis during the rating period. When compared to his peers, Sgt. Foraker clearly performs at a level above his contemporaries. (A842) (emphasis added). 2. Sgt. Foraker's History With the DSP. Sgt. Foraker joined the DSP in 1985 and then served throughout the state on patrol, as a canine handler and as a team leader of the Special Operations Response Team (SORT). In 1997 he transferred into the FTU. (Foraker 511,17-18,89; Foraker 1 Compl.& Ans. ¶ 4; A1100-01, 1103,1121,815,827). While serving there, his leadership abilities were recognized and he was chosen by the DSP to attend the Northwestern School for Police, Staff and Command, a 12 week leadership school with special emphasis on supervisory and managerial skills. (Foraker 99-101; Seifert 8-9; A1123-24,9550). At the FTU, in addition to his SORT duties, he served as a firearms instructor and, beginning on

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August 1, 2001, his outstanding work was further recognized when he was promoted to Sergeant and became the non-commissioned officer in charge (NCOIC) of the entire Unit. (Foraker 1 Compl. & Ans. ¶ 7, 4; Foraker 18,20-26,102-103; A815,827,1103-05, 1124). But less than seven months later, on February 22, 2002, Sgt. Foraker ran afoul of the good old boys network in the DSP. He was demoted, transferred out of the FTU and given a dead end assignment at the Police Academy because he disciplined a close personal friend of Chaffinch for wrongdoing. (Foraker 9-10,92-93,103; Foraker 2 Compl. & Ans. ¶ 8; Chaffinch Ex. 1 at ¶¶ 1-3 - Special Verdict Form; A1101,1122,1124,11,038,477). B. Sgt. Foraker's Protected First Amendment Activity. 1. The Initial Lawsuit. As a result of that retaliatory transfer, Sgt. Foraker filed suit against defendant Chaffinch and the DSP in April 2002. See Foraker v. Chaffinch, et al., C.A.No. 02-302-JJF (D.Del.). (Foraker 2 Compl. & Ans. ¶ 10; A11,38). Sgt. Foraker alleged that Chaffinch had transferred him to a dead end position in retaliation for his speaking out and reporting numerous inappropriate actions by a trooper under his command who was a close personal friend of Chaffinch's. First, Sgt. Foraker reported this trooper for having unhealthy levels of lead in his bloodstream. Second, he wrote this trooper up for lying in the course of his state police duties. Third, he insisted that this trooper be reported and disciplined for sexually harassing and touching a vulnerable female civilian cleaning contractor at the FTU. Lastly, he gave this trooper a negative performance evaluation because of his wrongdoing. See Foraker v. Chaffinch, C.A.No. 02-302-JJF (D.Del. June 17, 2003) (slip op.) at 6-7 (attached) (noting the four areas of speech).4 In June 2003, Judge Farnan found that Sgt. Foraker's speech "involved a matter of public concern." Id. at 8. After reviewing the sizeable and detailed factual record in this regard, Judge

There is a massive amount of evidence from the first case in this regard, all of which is in the present record. (See, e.g. Foraker 116, 119-20; A1128-29).

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Farnan found that "Sgt. Foraker's interest in reporting unacceptable behavior by a subordinate is very high and actually serves to increase the efficiency of the State Police." Id. at 9. The District Court continued and held that Sgt. Foraker's speech about wrongdoing by Chaffinch's close personal friend was protected by the First Amendment. Id. 2. The Unprecedented Jury Verdict. The case went to trial in June of 2003 where the federal court jury found that defendant Chaffinch had violated plaintiff's First Amendment free speech rights by illegally transferring him from the FTU in retaliation for engaging in protected speech activity. (Foraker 2 Compl. & Ans. ¶ 11; A11,38). The careful jury awarded $40,120 in compensatory damages. (Chaffinch Ex. 1 at ¶ 6 - Special Verdict Form; A478). The discerning jury continued and found that Chaffinch had acted with "malice or with callous and reckless indifference or oppressively" and that his "conduct was so shocking and offensive" that it warranted an award of $60,000 in punitive damages "to punish and deter [his] illegal conduct." (Id. at ¶¶ 7-8; Foraker 2 Compl. & Ans. ¶ 11; A478,11,38). The jury verdict that the Colonel of the State Police had maliciously violated the First Amendment rights of a Trooper under his command was "unprecedented" in the history of the State Police (MacLeish 38; Chaffinch 27; Baylor 414; A103,432,405), and received widespread media coverage throughout the State. (MacLeish Ex. 1 - media articles; Chaffinch 25,173; MacLeish 21-22; Foraker 2 Compl. & Ans. ¶18; A200-07,431,468,98-99,13,39). 3. The Settlement and Reinstatement. The case subsequently settled in November 2003 pursuant to a settlement agreement and a Stipulated Order. (Foraker 2 Compl. & Ans. ¶¶ 12-17; A12-13,38). The Order stated that Sgt. Foraker is ordered reinstated to his prior position as the Non-Commissioned Officer-in-Charge of the Firearms Training Unit of the Delaware State Police with all of the rights, privileges, duties, responsibilities and supervisory authority previously held by him when he earlier occupied that position on February 20, 2002. (Stipulated Order at ¶ 1; A4,34). The Court specifically retained jurisdiction to enforce its

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reinstatement Order. (Id. at ¶ 3; A4,34). The parties also agreed that there was to be no retaliation against Sgt. Foraker following his reinstatement. (Settlement Agreement at ¶ 2; A1). The settlement of the case and Sgt. Foraker's reinstatement also received widespread media coverage throughout the State. (MacLeish Ex. 1; A200-07). C. Defendants' Open Vendetta Against Sgt. Foraker. As a result of Sgt. Foraker's lawsuit, defendants carry a personal vendetta against him. As Chaffinch openly bragged throughout the DSP - "I'm going to get that son of a bitch." (Dixon 17-18,77; A527-28,542). He was "pissed" off. (Baylor 402; A402). "[I]f people f-ck with Chaffinch, I'm going to f-ck back." (Dixon 10,53-54; A526,536-37).5 He regularly stated that Sgt. Foraker is a "real pain in the ass" and is a "f-cking a­hole." (Dixon 16,76,74; A527,542).6 Chaffinch himself admits that he was "upset" and "unhappy" with Sgt. Foraker because of his lawsuit. (Chaffinch 40; A435). His loathing of Sgt. Foraker was visibly apparent (Baylor 402-404,440; A402,411) and it was clear that he did not like the lawsuit or the jury verdict. (MacLeish 38; Baylor 404-05; A103,402). In the same way, MacLeish was admittedly "irritated" and "not happy" that Sgt. Foraker had filed a lawsuit. (MacLeish 34,31; A101-02). Childishly, he "grits his teeth" and "growls" like a dog when in Sgt. Foraker's presence. (Foraker 196,236; A774,784). He agrees with Chaffinch and also swore under oath that he thinks Sgt. Foraker is a "real pain in the ass" because he had invoked his First Amendment rights. (MacLeish 164-165; A134). Chaffinch has been "angry" at Sgt. Foraker "for a very long time," "since the lawsuit began." (Dixon 14,22-23,52,55; A527,529,536-37). He regularly mocked Sgt. Foraker and joked about his injuries described in his initial lawsuit. (Dixon 14-15,74-75; A527,542). He was angry the entire life of Sgt. Foraker's suit. (Dixon 20,75; A528,542). His "anger increased"

5

Chaffinch also said this about other Troopers who filed lawsuits. (Dixon 10; A526).

Notably, Chaffinch refused to refer to Sgt. Foraker by his rank. Instead, he substituted the word "f-cking" for the word `sergeant.' (Dixon 9-10,53; A525-26,536).

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after Sgt. Foraker's unprecedented jury verdict and after Judge Farnan reinstated him to his prior position at the FTU. (Dixon 20-21, Baylor 403-05,439; A528,402,411). It was regularly discussed among commanders that Chaffinch was "going after Sgt. Foraker." (See Dixon 69; A540). D. The Firearms Training Unit. The FTU is a $3.3 million dollar facility that opened in 1998. (Chaffinch 114; A454). As Major Baylor succinctly explained, the FTU "was a hazardous situation for [plaintiffs] and for anybody who trained in that facility at all, including myself." (Baylor 207; A314). The FTU was "not a safe place to work." (Chaffinch 153; A463). 1. The Longstanding Health and Safety Concerns at the FTU. In defendants' own words, the FTU has had a "long history of problems" affecting health and safety since its very inception. (Chaffinch 52,59; MacLeish 40; Foraker Inter. #6; Price Inter. # 5; A438,440,103,66-70,2279-85).7 A Captain who was involved with the facility since its planning stages was publicly quoted in the media as stating that the FTU has been "[t]he absolute epitome of a project from hell since its very inception." (MacLeish 150; A131). An unqualified builder who had never before constructed a firearms range was hired, despite the fact that it had finished dead last in the bidding rankings. (Price Inter. #5; Foraker Inter. #9; MacLeish 115; FTU15991600; A2280,71-73,122,2139-40). More problems soon followed.8 a. The System "Will Inevitably Fail." For example, in 1996 an expert firearms range builder reviewed the specifications and blueprints for the FTU's ventilation system. In a letter to the State Police, the expert stated that:

There is a plethora of both record testimony and documents in this regard. (See, e.g. Price Inter. # 5,9-12, and Ex.1; Foraker Inter. #6,9-10; MacLeish 39-59; MacLeish Ex. 6-16; Chaffinch 52-64; Chaffinch Ex. 2; Baylor 182-230; Davis 9-34,36-39; A2279-2301,2315-75,66-77,103-08,218-36,43841,480-81,308-20,485-93). As an April 26,1999 consultant report from Clark-Nexsen (the industry leader in constructing firing ranges) explained, "[m]any of these problems would not of occurred if you had hired an A/E firm who had previous experience in designing this type of specialized facility." (2144).
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We have evaluated the ventilation system design for the proposed State Police Facility. We have evaluated the design of the fan, heating & cooling equipment, duct, filter, air flow and control systems and have concluded that this system, as designed will not work. The definition of "will not work" is simply that the present design will not perform as it is required to under the present requirements of OSHA & NIOSH. *** We have concluded that the designed system will inevitably fail if it is constructed as designed. (MacLeish Ex. 6; A218) (emphasis added). This warning was disregarded, and the facility has been plagued by health and safety problems ever since. Hundreds of thousands of dollars have been poured into this multi-million dollar facility but to no avail.9 Indeed, the evidence reveals that the FTU was doomed since its very inception. b. A Representative Sampling of Problems. Some of the many health and safety problems include the following · Unsafe levels of lead in the air, levels above the safety standards set by the National Institute of Occupational Safety and Health, (MacLeish Ex. 8; A222), Unsafe levels of lead, copper, and other heavy metals in the bloodstream of the staff at the facility, (Price Inter. #5,10; Chaffinch 55,106; Chaffinch ex. 2; MacLeish ex. 15,11; A2279-85,2287-92,439,452,480-81,233,226-27),10 Clouds of smoke and haze containing bullet residue consisting of lead and other heavy metals that hover throughout the range and which those who work and train there were forced to breathe, (MacLeish ex. 13,7; Price Inter. #11,12;Chaffinch 56; A23031,221,2292-2301,439),11

·

·

See, e.g. Foraker v. Chaffinch, slip op. at 8 n.2 (noting the record evidence that after spending millions of dollars to build the facility, because of the "hazardous side-effects" of lead, such as "longterm, permanent damage to the nervous system," the DSP was forced to spend another $500,000 to upgrade the ventilation system that was not removing dangerous particles of lead from the air). And as the record in our present case has revealed, this expenditure of half a million dollars of taxpayer monies failed to fix the ventilation problems that continue to plague the FTU. Notably, one of the areas of speech at issue in Sgt. Foraker's first suit was his speech about unsafe lead levels of an officer under his command. (Chaffinch 20; A430). Plaintiffs were repeatedly told by Facilities Management and the DSP that the bullets they were firing were non toxic. (Davis 37-38; Price Inter. #12; A492-93,2300). However, it turned out that they were deceived as the bullets were in fact made out of toxic heavy metals such as nitroglycerine, arsenic, tin, copper and zinc. (Davis 38-40; Price Inter. #12; A493,2300-01). The Troopers at the range
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·

Nosebleeds and a penny taste in the mouths of officers who train and work at the range, (Price Inter. #12 ; A2300). As defendants themselves admitted, the facility was never properly funded by the State

so it was not built properly from day one and has had problems with the ventilation system, old and broken down equipment, a broken bullet-trap, lead exposure, dust contamination, general contamination, smoke in the range, the ceiling collapsing under its own weight, the omission of a sprinkler system from this building that stores large amounts of explosive materials and failure to obtain a certificate of occupancy, among many other problems. (Chaffinch 52-53, 55-57, 104; MacLeish 40, 46, 49-50, 52-53, 56-57; Price Inter. #5; A438-39,451,103,105-107,2279-85). It has been shut down numerous times since it opened. (MacLeish 40,114; A103,122). c. Problems Revealed by Internal DSP Documents. There also is a voluminous record of internal DSP documents that attest to the long history of health and safety problems that have plagued the FTU since it opened. (1). Problems Under Sgt. Fitzpatrick. For example, a November 8, 1998 internal DSP memo from Sgt. Fitzpatrick who was the original NCOIC of the newly opened FTU, is titled "Range ventilation problem" and discusses the malfunctioning HVAC system at the facility. (MacLeish ex. 7; A221). It notes the "excessive odor of gun smoke" and warns that "the ventilation system is causing a horizontal tornado" in the middle of the range. (Id.) It notes that some of the ventilation problems were caused by the ceiling bullet "deflectors that were identified in the blue prints [and which] were not installed[,] therefore the system is not working properly." (Id.) The memo closes with a warning about the "urgency to get this problem rectified" and that "the range staff is exposed daily and there is a potential for serious health problems." (Id.)

were "look[ed] down upon" by Facilities Management, which displayed a "defiant" and condescending attitude towards them as they tried to discover the composition of the bullets. (Davis 36-40; A492-93).

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Less than one month later, a December 1, 1998 letter to the State of Delaware from Batta Environmental Associates reports that levels of lead "in the firing range area ... [are] above the OSHA limit." (MacLeish ex.8; A222). Two days later, another internal DSP memo from Sgt. Fitzpatrick notes that the FTU has been shut down and "closed until the air handling system can be fixed." (MacLeish ex. 9; A223). Continuing, another April 29, 1999 internal DSP memo from Sgt. Fitzpatrick discusses the "large amount of lead dust on the floor and equipment" at the range and assorted problems with the air filters in the HVAC system. (MacLeish ex. 10; A225). It also discusses the spiking blood lead levels of the only two troopers who had yet been tested. (Id.) The NCOIC warns that "a major problem now exists" at the range. (Id.) And in a June 14, 1999 article entitled "Shooting range under fire for lead - State police are exposed to levels of metal in air twice federal standard," even the News Journal reported on the disastrous conditions at the FTU. (A2639-41). The article discusses unhealthy lead fumes, unsafe blood lead levels, the HVAC system which blows air 180 degrees in the wrong direction towards the shooters and that the staff who train there every day are at risk.12 Notably, the article also discusses how the chief administrator of the Division of Facilities Management also owned the very construction company that was hired to build the malfunctioning facility - a sweetheart backroom deal if there ever was one. (A2640). (2). Problems Under Sgt. Parton. A June 29, 2000 internal DSP e-mail from Sgt. Parton (Sgt. Fitzpatrick's successor as NCOIC) continues to sound the alarm about problems at the range. (Chaffinch ex. 2 p.2; A481). It warns that the lead levels of a trooper at the range had dramatically spiked and that "the medical staff at Health Works" had raised concern "in respect to safe levels of personal contamination." (Id.). He warns that a range

The April 14, 1999 Clark-Nexsen consultant report (A2143) also reported that the air was blowing "up range toward the shooters." (A2149). The report continued and explained that the entire ventilation system needed to be replaced in order to reach safe air flow levels. (A2150)

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"instructor has reached a critical level of contamination and the problem needs to be resolved." (Id.). Sgt. Parton also discusses that he had met with Facilities Management "regarding the ventilation and contamination problems." (Id.). He notes that the range continues to "experience lead dust contamination," and that "we now know where the contamination source stems from," but that the state refuses to pay to fix the problems. (Id.). Also in the record is yet another internal DSP memo from Sgt. Parton to Lt. Davis. (Chaffinch ex. 2 p.1; A480).13 Sgt. Parton strongly contests the claim that "there were no reported problems at the range" from 1999-2002 and the claim that the range staff sat on problems during his tenure there. (Id.). In his own words, "[a]s the NCOIC of the range, I reported continuously regarding lead contamination, personnel lead levels and the recurring problems with the ventilation." (Id.). He cautions the State to use care in their claims that the range has never had problems, stating "I am not as naive or incompetent as they may believe. I have a very vivid memory of my tenure at the range and the problems that were encountered on a regular basis." (Id.) (emphasis added). (3). Problems During Sgt. Foraker's First Tenure at the FTU. In light of the fact that this present suit arises from defendants publicly blaming Sgt. Foraker for destroying the multi-million dollar FTU, it is ironic that the longstanding health and safety concerns at the facility were one of the much litigated issues in Sgt. Foraker's earlier successful lawsuit - where not a single word of blame was ever leveled against him for destroying the facility. For example, Judge Farnan's summary judgment opinion in the earlier case devotes nearly a page long footnote to the issue of lead and lead exposure at the FTU. See

Although undated, the document itself indicates that it was written after February 2004, and that it was sent while Davis was still a lieutenant. (Accord Davis 33; A491). Davis was promoted to Captain in September 2004. (Davis 6-7; A485). Thus it appears that this internal DSP memo was sent between February and September 2004. When viewed in the context of this case, it appears likely that it was sent in the spring of 2004 when defendants and Facilities Management were claiming that the FTU has never had any problems.

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Foraker v. Chaffinch, slip op. at 8 n.2. This is because one of the issues in the case was the unsafe levels of lead in the bloodstream of a Trooper at the range. Id. at 6-7 (noting that one of the areas of Sgt. Foraker's speech concerned a subordinate who "had dangerously high levels of lead in his blood.") (Foraker Inter. #6; A67-70). A great deal of testimony from members of Chaffinch's own Executive Staff and other documents also addressed this in the earlier case. (Foraker Inter. #6; A67-70). (4). Problems Under Sgt. Ashley. Also in the record is an undated internal DSP letter/memo to Major Hughes from Sgt. Ashley (who was the NCOIC after Chaffinch transferred Sgt. Foraker out of the FTU in April 2002 in retaliation for his protected speech). Ashley explained that the "Bullet Recovery System is inoperable." (A2180). He explains that numerous attempts have been made to fix the bullet trap, but that "[a]ll previous attempts to make the system operate have failed." (Id.). He continues and notes that the bullet trap was not designed for frangible (non-lead based) ammunition, and that the use of such ammunition "has caused the Bullet Recovery System to fail." (Id.). In addition to the bullet-trap not working during Ashley's tenure, the HVAC system was failing, often times it would simply turn off by itself. Sometimes, the range staff had to risk life and limb and climb up onto the roof of the FTU to try to reset the massive system. A pink colored dust settled on all horizontal surfaces. The pumps on the bullet trap died and were repeatedly replaced in an effort to get the failing system to function. The conveyer belt seized up and became inoperable. Officers became sickened from the pungent odors from the armorer's room. Protective headsets failed. The floor scrubber also broke down and ceased to function. (Price Inter. #11; A2292-97). 2. The FTU Contains 700 Times the Safe Level of Lead in the Air. Yet another disturbing example of the health hazards at the FTU was noted in the April 13, 2004 report prepared and issued by Harvard Environmental (A22180-82) at the request of the State of

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Delaware. The report found that even in 2004, in the internal air supply ductwork of the HVAC system which is supposed to supply clean air to the facility, the lead levels were 140,000 micrograms per square foot (A2202-03,2265), 700 times the acceptable level as identified by the U.S. Navy. (See A1492 - noting that the safe level identified by the Navy is 200 ug/SF).14 Not surprisingly, the Delaware media also picked and reported on this disturbing fact. (TNJ, 4/15/04; A2376).15 E. The Disastrous Conditions at the FTU on Sgt. Foraker's First Day Back. Sgt. Foraker was reinstated to the FTU on December 1, 2003. (Foraker 2 Compl. & Ans. ¶ 17,1; A8, 13). Upon his arrival at the facility that day, he encountered a disaster area. Sgt. Foraker, as well as Master Corporals Price and Warren have submitted extensive sworn answers to interrogatories attesting to the disastrous state of the FTU that day. (See Price Inter. #12; A2297-2301). For example, as in the past under the prior NCOICs, there was a heavy buildup and accumulation of red, copper and pink colored dust covering all horizontal surfaces throughout the facility. (Id. at #12 p.33-34; A2298-99). The HVAC system was dangerously blowing air and toxic bullet debris 180 degrees in the wrong direction - into the respiratory zones of the shooters and instructors - instead of away from them. (Id. at #12 p.33-34; A2298-99).16

Plaintiff notes that the chart on page A2188, in conjunction with the diagram on page A2202, explains that the "Supply Air Trunk" ducts are the clean air supply ducts (such as the duct abbreviated SA1C) which are supposed to blow clean air forward towards the front of the range and away from the Troopers and instructors shooting on the firing line. As noted in the text above, it is these clean air ducts that contain 700 times the safe level of lead. Earlier that year, in February 2004, Mr. Art Nielson, a certified federal industrial hygienist who inspects federal firing ranges, inspected the FTU and told Sgt. Foraker and his officers that if the FTU was a federal range, then he would shut it down because of the hazardous levels of air contamination. He also stated that the building was not fit for occupancy. (Price Inter. #15; A2303-04). As Sgt. Foraker testified, "I'm not an engineer...but I do know that the breeze is supposed to go to the bullet trap and up into the filters. It's not supposed to go backwards." (Foraker 154,174; A719, 724). When Sgt. Foraker brought this issue to the attention of the State's experts, the response was "I wish I could tell you it's working, but all I can tell you is it's working as best it can." (Foraker 154-55; A719). Perhaps this explains why the clean air ventilation ducts contained 700 times the safe level of lead.
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Other problems abounded, including: the bullet trap not functioning properly; the drag belt system not working properly; officers and students at the facility were suffering from nosebleeds, sore throats, irritated eyes, and a penny taste in their mouths; and instructors were being sickened from the toxic fumes in the armorer's room. (Id. at #12 p.33-34; A2298-99).17 Additionally, plaintiff's supervisor Capt. Davis was present the morning of December 1st and toured the facility with Sgt. Foraker. His sworn deposition testimony confirms the sworn testimony of Sgt. Foraker and Master Corporals Price and Warren. He testified that the FTU was an absolute mess and in near total disarray when he toured the facility that morning and that there was a dust or powder covering everything in the building. (Davis 9-14; A485-87). F. Sgt. Foraker Speaks Out And Sounds the Alarm. Immediately upon discovering the gravity of the problems at the FTU, Sgt. Foraker sounded the alarm and brought the problems to the attention of his superiors. (See, e.g. Foraker Inter. #10; A73-77). His performance evaluation praises his reaction in this regard. Upon returning to the DSP FTU, Sgt. Foraker identified safety issues that placed the health of the FTU staff in serious jeopardy. Sgt. Foraker immediately brought this to the attention of the Academy staff as well as the DSP Executive Staff with information concerning the conditions at the range. (A838). His supervisor noted that Sgt. Foraker's performance was "Distinguished" in this regard and again praised him for "immediately identifying safety issues" that jeopardized the health and safety of all who trained there. (A839). After notifying the staff, Sgt. Foraker went above and beyond as he continued to provide updates of the range conditions, conducted research to identify the cause of the problems, and attempted to identify potential solutions. Sergeant Foraker made this information available to the DSP Academy and Executive staffs, the Department of Administrative Services, and the Delaware Auditors Office. (A839). Capt. Davis also testified at length about Sgt. Foraker raising the alarm both orally and in

These interrogatories address the conditions and problems at the facility in excruciating detail. Plaintiff notes that these deplorable and hazardous conditions at the FTU also are discussed in the summary judgment brief being filed contemporaneously in the Price, et al. v. Chaffinch, et al. case.

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writing about the many problems at the FTU. (Davis 17-40; A487-93). He testified that Sgt. Foraker was "basically pleaing for help." (Davis 30; A491). The record is full of e-mails in which Sgt. Foraker raised these serious issues up through the chain of command, some directly to defendant MacLeish and in others to Capt. Davis and Capt. Warren. (See, e.g. MacLeish ex. 1115; Price Inter. #13 and ex. 1; A226-33,2301-02,2315-56). G. Defendants Attack and Publicly Blame Sgt. Foraker for Destroying the FTU. 1. Defendants Decide to Give the Media Tours of the FTU. Chaffinch gave the media two tours of the FTU during which he defamed Sgt. Foraker and his men. (Chaffinch 65). These tours were attended by reporters from the Delaware State News, the News Journal and WBOC-TV out of Salisbury, MD. (Chaffinch 65-67,70-71,88-89,91; A441-43,447-48). MacLeish attended the second tour. (Chaffinch 88; MacLeish 81-82; A447,113-14). 2. Before the Tour, Chaffinch Brags that He is Going to "Stick It To" and "Put It On" Sgt. Foraker. Before leaving headquarters to give the first media tour on April 6, 2004, Chaffinch went down to the traffic section and talked to Captains Dixon and Conley.18 There, "he pointed his finger saying that he is going to put it on him, on f-cking Foraker." (Dixon 12,51; A526,536). He was going to "stick it to" Sgt. Foraker. (Conley Decl. ¶ 7; A156465). He was "going to put it on Foraker and lay a lot of the blame on Foraker for the range." (Dixon 8,65; A525,539). Chaffinch stated, "[y]ou f-ck with Aaron Chaffinch, I f-ck back." (Dixon 54; A537). He continued and stated "I'm going to stick it up their ass" and "show them what I'm all about." (Conley Decl. ¶ 7; A1565). It was clear that he "definitely wanted somebody to know what his feelings were at that time." (Dixon 53; A536). He was "gunning after" Sgt. Foraker. (Dixon 68; A540). 3. Chaffinch Blames Sgt. Foraker. True to his word, Chaffinch proceeded to

Even Chaffinch admits that this meeting "may have" occurred. (Chaffinch 177,182; A469, 471). This is because Chaffinch "would just periodically stop in there and just talk about things." (Dixon 64; A539).

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the FTU and attacked Sgt. Foraker and blamed him for destroying the multi-million dollar FTU facility. (See MacLeish ex. 5; A214-17). First he accused sergeant Foraker of incompetence and neglect of duty. For example, "[t]he previous sergeant in charge did a good job ... Things changed in December when another sergeant came in. That's at least a portion of where the ball was dropped." (Id. at p.3; Chaffinch 76-77; Foraker Inter. #5 ; A850,444, 64-66). "There was some discoloration in the bullet trap [prior to December 1, 2003] but that was about it. ... I think people who live in glass houses shouldn't throw stones. It's a lot dirtier now. Things seemed in their proper places in the fall. I've never seen it like this. (MacLeish ex. 5 p.3; Chaffinch 76; A214, 850,444). He noted that the facility required daily cleaning. Calling Sgt. Foraker a coward, he continued - "I cannot say Sgt. Foraker was willing to do that. He was interested in instruction and teaching people how to shoot. He did not feel (bullet trap cleaning) was part of his purview. He felt that was putting him in harm's way." (MacLeish ex. 5 p.3; Chaffinch 78-79; A214,850,445). Chaffinch also adopted the numerous defamatory statements made by another state official in the same article - "Col. Chaffinch acknowledged problems but indicated the blame lies only with one or two troopers under his command." (MacLeish ex. 5 p.1; Chaffinch 73-74; A214,443-44). Chaffinch has told MacLeish in numerous conversations that all of the problems at the FTU were caused by Sgt. Foraker and his men. (MacLeish 98-99; A118). "Chaffinch felt that [Sgt.] Foraker and the staff were responsible for the shutdown." (MacLeish 60; A108). But even though he disagrees that Sgt. Foraker and his men were responsible for destroying the FTU, defendant MacLeish did see fit to place 50% of the blame for the destruction of the facility on the whistleblowers who reported that the facility was broken and was poisoning and otherwise injuring those who worked and trained there. (MacLeish 58; A108). 4. Defendants Gag Sgt. Foraker and Bar Him From Responding to These Defamatory Attacks. Immediately after Chaffinch attacked Sgt. Foraker and blamed him for the

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disastrous conditions at the range, ace reporter Tom Eldred of the State News asked to speak to Sgt. Foraker and his supervisor so that they could defend themselves and respond. Chaffinch refused to allow the men to defend themselves and instead maliciously gagged them. "I have the authority to say yes or no ... I'm not going to allow these people to be interviewed at this point in regard to this particular situation." (MacLeish ex. 5 p.3; Chaffinch 78,80,83-84,86-88; MacLeish 91-93; A214,445-47,116). MacLeish also has gagged Sgt. Foraker (Foraker Inter. # 11; A77-78), and even he admitted that such gagging is "unfair." (MacLeish 104; A119). 5. World-Wide Publication of These Defamatory Attacks. As Chaffinch admitted, stories about these defamatory attacks ran in the State News, the News Journal, American Police Beat Magazine and on WBOC-TV. (Chaffinch 70-71; Foraker Inter. #5, 13 at p.30-31; Foraker 235; A443,783,64-66,82-86). In addition to being testified to, both the State News and the American Police Beat Magazine articles are in the record. (MacLeish ex. 5; A21417 A850).19 These defamatory allegations also were published throughout the local community. (See, e.g. Price Inter. #3 p.11-13; A2276-78). 6. Chaffinch Brags that "I Got Them Back." a. Chaffinch Brags to Major Baylor. Upon returning from his media tour, Chaffinch asked Major Baylor to come into his office. (Baylor 386, Chaffinch 185-86; A398, 471-72). He then told Major Baylor words to the effect of "I got them back" (Baylor 387, 390; A398-99), "I got my shots in" (Baylor 392; A399) and "I got my digs in." (Baylor 406, 40910,441; A403-04,412). The meaning here was clear to this neutral observer - "he was taking his shots at" Sgt. Foraker. (Baylor 409; A404). This "was his chance to get his dig back." (Baylor 412; A404). Then, clearly referring to Sgt. Foraker's earlier lawsuit, Chaffinch again stated that

The State News article remains on the internet for the entire world to continue to see. (See www.newszap.com/articles/ 2004/04/07/dm/central_delaware/dsn03.txt) (visited on January 1, 2006). The other has an international circulation. (See www.apbweb.com/subscribe.htm (visited on January 21, 2006)).

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people "who live in glass houses shouldn't throw stones." (Baylor 387-88, 390, 407; Chaffinch 185; A398-99,403,471). Baylor then asked "who" did you get back at and Chaffinch pointed to the Academy building. (Baylor 387, 410; A398,404). It was clear that Chaffinch was "referring to that whole group of individuals" at the range in general. (Baylor 389,391,410; A399,404). But specifically, Baylor immediately knew that he was referring to Sgt. Foraker. (Baylor 389; A399). "I recall that the Colonel clearly blamed Chris for it." (Baylor 393,422-23; A400,407). When understood "in the framework and the context" of what was occurring in the DSP at the time, it was clear to everyone that Chaffinch was referring to Sgt. Foraker. (Baylor 410-11,441; MacLeish 86,88,90; A404,412,115-16). It's "pretty clear from reading" the article that he was accusing Sgt. Foraker of neglect of duty. (MacLeish 90; A116). b. Chaffinch Brags to Capt. Conley. That same afternoon, Chaffinch returned to the Traffic Section and again spoke to Capt. Conley. He was "visibly excited and was bragging about the media tour." (Conley Decl. ¶ 9; A1565). He "thought that he had done a great thing" and acted "very proud of himself." (Id.). Chaffinch bragged that he had, among other things, "put it on them" and "took it to him." (Conley Decl. ¶ 10; A1565). c. Major Baylor, Capt. Conley and Capt. Dixon Discuss Chaffinch's Actions and Words. Baylor, Conley and Dixon later met and talked about what Chaffinch had told them. (Dixon 13,55-57,96-97; Conley Decl. ¶ 11; A526,537,547,1565).20 They expressed shock and surprise. (Dixon 14,67-71; A527,540-41). "We simply could not believe what the Colonel had done by publicly attacking the men and blaming them for the problems at the range." (Conley Decl. ¶ 11; A1565).

Although he does not have a present memory of it, Major Baylor testified that he very well may have discussed Chaffinch's words and actions with Captain Dixon and Captain Conley. (Baylor 394-95, 424-26, 448-53; A400,407-08,413-15). He observed that the FTU matter "was a matter of discussion amongst senior level people like myself" and other officers. (Baylor 395; A400).

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7. Major Baylor Urged Chaffinch to Retract His Accusations. Baylor urged the Colonel to immediately call the media and retract his attacks on Sgt. Foraker, but Chaffinch refused. (Baylor 387-88,390,407-09,412; A398-99,403-04). He told Chaffinch that he "didn't want it to appear that [Chaffinch] was coming at" the range troopers - but Chaffinch "didn't want to hear it." (Baylor 390,409; A399,404). Baylor was left with the impression that Chaffinch's view was that because Sgt. Foraker had sued him, "now it's my time to get you back." (Baylor 409; A404).21 H. Defendants' Allegations of Blame Are Malicious Falsehoods. As Major Baylor succinctly explained (Baylor 209-210; A314-15), blaming plaintiffs for destroying the FTU would be the equivalent of blaming troopers for operating a Ford vehicle in which the gas tank exploded when they were hit from the rear because ... somebody decided to run into them. You can't blame the trooper for that and I don't think you can blame the troopers for this. The defense blame tactic will not hold water. In the DSP, a Trooper is brought up on charges and disciplined for something as minor as backing into a telephone pole or dinging the bumper on his car. (MacLeish 48; Hughes 41; A105,1744).22 Thus, it is notable that despite the present defense claim that plaintiffs destroyed a multi-million dollar training facility, they have never been brought up on charges for their alleged misconduct. (MacLeish 47-48,53-54,58,100; A10508,118). MacLeish admitted that the