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Quick v. Clark County

United States District Court, D. Nevada

March 31, 2018

MICHAEL QUICK, Plaintiff,
v.
CLARK COUNTY, NEVADA, ex. rel. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; PETER M. BOFFELLI, JR., Defendants.

          ORDER DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 27)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court comes a Motion for Summary Judgment filed by Defendants Las Vegas Metropolitan Police Department (“LVMPD”) and Peter M. Boffelli, Jr. (“Boffelli”) (collectively, “Defendants”). (ECF No. 27). For reasons that will be discussed in further detail below, the Court grants Defendants' Motion for Summary Judgment.

         II. UNDISPUTED FACTS

         The Court finds the following facts to be undisputed. Plaintiff Michael Quick (“Plaintiff”) was hired as a police officer with the LVMPD in 1993. His most recent position with LVMPD was SWAT Team Leader and SWAT Training Section Sergeant. LVMPD is a governmental entity responsible for law enforcement in Clark County, Nevada. Boffelli is a captain in the LVMPD and at the times relevant to this case was the lieutenant over SWAT.

         In April of 2014, Federal Bureau of Land Management (“BLM”) agents traveled to Bunkerville, Clark County, Nevada to execute a seizure order for cattle belonging to rancher Cliven Bundy (“Bundy”). During the following days, as BLM agents gathered the herd of cattle, Bundy utilized social media to generate support for his cause. Armed militia members descended on Bunkerville and engaged the BLM agents with firearms, shotguns, and assault rifles. On April 12, 2014, BLM agents asked Sheriff Doug Gillespie (“Sherriff Gillespie”) to provide assistance and security for their agents who were outnumbered by the militia members. Sheriff Gillespie responded to Bunkerville with uniformed police officers and a SWAT team. While Sheriff Gillespie attempted to negotiate a peaceful resolution, militia members and other anti-government people secured the high ground giving them a tactical advantage over the law enforcement officers. The media photographed these members posted on highways, overlooking the scene, with high-powered rifles pointed at the officers below.

         An LVMPD SWAT officer, Russell Laws (“Laws”), who was not dispatched to Bunkerville, observed a Facebook post with a picture of an armed individual at the Bundy ranch scene. The photo depicted a person, hiding behind an overpass wall, aiming a rifle at law enforcement officers. A person acting as a spotter knelt next to the gunman. The caption on the photo read, “THE 2nd AMERICAN REVOLUTION ALMOST STARTED TODAY.” Laws wrote on the post's thread, “I just wish you could see how big that guy prone with the rifles [sic] head was in the scope of the LE [Law Enforcement] Snipers [sic] .308 [rifle], don't worry, he wouldn't have felt a thing!!” Laws did not identify himself as a police officer. The bloggers were able to identify Laws as a police officer. Laws removed his remarks from the site and contacted Boffelli to advise him of the matter.

         Following that incident, Boffelli summoned Laws and his supervisor, Plaintiff, to his office. Boffelli announced he was administratively transferring Laws to Patrol. Shortly thereafter, Boffelli ordered SWAT members to attend a team meeting. At that meeting, Boffelli informed the SWAT members he transferred Laws out of the unit for violating LVMPD's Social Media Policy. Laws was administratively transferred out of SWAT on May 10, 2014, although he remained an officer in the department with the ability to carry a handgun and potentially execute search warrants. Laws subsequently filed a grievance through the Las Vegas Police Protective Association (“LVPPA”), a police union, alleging his removal from SWAT was an illegal disciplinary transfer. On May 14, 2014, LVMPD refused to accept Laws' grievance and advised him he was not entitled to file a grievance, as his re-assignment was an administrative transfer, i.e., non-disciplinary, and therefore could not be subject to a grievance.

         Laws then filed a second grievance seeking arbitration of this issue. In preparation for the arbitration hearing, LVPPA investigators interviewed SWAT members including Plaintiff. Plaintiff participated in a voluntary interview with the LVPPA on June 5, 2014 at 9:27am. The interview was audiorecorded, and conducted by Detective Rory Neslund (“Neslund”) and Detective Darryl Clodt (“Clodt”) of the LVVPA. Plaintiff identified himself as Laws' direct supervisor. During the interview, Plaintiff was asked about the SWAT section meeting in which Boffelli commented upon Laws' violation of the Social Media Policy and subsequent administrative transfer.

         Plaintiff was asked several questions about his opinion as a supervisor regarding Laws' integrity and judgment. For example, Neslund asked, “Do you feel that this incident [Laws' violation of the Social Media Policy] compromised [Laws'] integrity as a SWAT operator?” Plaintiff responded that he “looked at this [situation] . . . much like it's porn . . . . This is always going to be out there. [Laws] did something [and] . . . made a mistake and - and is it a - is it a punishable offense? Maybe, maybe so. But we never got that opportunity.” When asked, “Does this incident cause you to question his judgment as a sniper or SWAT team member?, ” Plaintiff responded: “No. I - and I - I'm going to add this because I am the supervisor. I think it doesn't cause me to question [his judgment], especially had we been able to handle this properly. Had this been an issue where discipline was effective, immediate, and equitable . . . I think this could have been a great learning experience for both the section and for [Laws] himself.” Neslund also asked Plaintiff questions about SWAT operations and staffing, such as “Is the team better off with the one less certified sniper?” and “Is the team more effective in any way without [Laws] there?” To these questions, Plaintiff responded in the negative. He stated, “I wouldn't say we're more effective. We're - we're less effective. . . .” As follow up, Neslund asked, “[W]ith him being gone under this administrative transfer, because of his effectiveness in the unit, did him leaving make that unit before more effective somehow because he's gone?” Plaintiff responded that he did not believe so. Plaintiff additionally opined “as a supervisor in SWAT” about the safety issues related to a shortage of SWAT personnel. Prior to the interview, Plaintiff informed Boffelli that Plaintiff disagreed with the decision to administratively transfer Laws.

         On July 18, 2014, Boffelli called Plaintiff and asked if Plaintiff had provided a statement to the LVPPA regarding the effectiveness and safety of SWAT. At the time, Plaintiff had not seen the transcription of his statement and responded that he did not recall making such a statement. Boffelli stated during the call that he lost confidence in Plaintiff, and that Plaintiff was “going to need to find another home.” Boffelli admitted that he raised his voice and may have sworn at Plaintiff during the call. Boffelli also accused Plaintiff of being “deceitful” and a “back stabber.”

         On July 23, 2014, days before the scheduled arbitration hearing for Laws, Boffelli ordered Plaintiff to come to his office. Along with Boffelli, Deputy Chief Jim Owens (“Owens”) was present at the meeting. Plaintiff noticed what appeared to be a recording device on Boffelli's desk. Owens told Plaintiff that the meeting was not about Plaintiff speaking with the LVPPA, but that Owens and Boffelli wanted to discuss the substance of Plaintiff's statement. Plaintiff was informed that he could obtain an LVPPA representative before answering questions. Plaintiff accepted the offer for representation, and the meeting concluded. At some point that same day, Owens, handwrote a page of notes that includes near the top: “Do we speak to Quick to determine what his thought process [was]? . . . Appearance of retaliation if we do not give him a chance to explain his thoughts.” Below that text appears a checkmark next to the words “Stop process (admin transfer)” and, further down, the words “Advise Quick / [illegible] that final decision to admin transfer Quick.” The note reads on the top of the second page: “Worried there is not enough to make it stick and we would lose ability to admin trans.” Further, the note includes a short list of questions which reads: “Does he think what [Laws] did was wrong? What potential impact could Laws['] action have on [LVMPD]?” and the text below reads: “Go down the line - explaining our concerns[.] Do our expectations match [LVMPD] policy[?]”

         Laws' arbitration hearing took place on August 5, 2014. That day, Plaintiff was ordered to Boffelli's office for a counseling session. Plaintiff attended the session with an LVPPA representative. At the beginning of the meeting, Boffelli activated his recorder, and then stated that the meeting had nothing to do with Plaintiff giving a statement to LVPPA. However, he proceeded to ask questions about Plaintiff's statement. Plaintiff only responded that he was prepared to be counseled. Eventually, Boffelli turned off the tape recorder and the session concluded.

         On August 18, 2014, Boffelli, Captain Brett Zimmerman and Deputy Chief Owens served Plaintiff with his administrative transfer order. Owens authored a memorandum explaining the reasons for Plaintiff's administrative transfer. He wrote, in relevant part:

         “The transfer is being requested to further the mission of the Department, specifically SWAT Section's mission. That mission, as stated in the current version of the Section's manual is: ‘Through the use of specialized tactics, training, technology and weapons, the mission of the LVMPD SWAT section is to save lives, protect people, property and rights in our community.' Sergeant Quick has lost his supervisory and global perspective which has compromised his ability to lead, manage and/or supervise within the SWAT Section. With his abilities compromised, I have determined that Sergeant Quick has rendered himself ineffective and cannot continue his tenure within the SWAT Section. . . . His actions have caused me, as well as the chain of command, to lose confidence in his ability to make decisions that will allow the Section to [fulfill its mission] . . . while maintaining a high regard for the sanctity of life.” Owens additionally wrote that, after reviewing Plaintiff's taped statement, he concluded that Plaintiff “does not realize or even consider the liability incurred by the statement made by Detective Laws in reference to his social media posting” and “has not considered the global impact that retaining Detective Laws as a SWAT Team Member will have on our section or even the department.” Boffelli and Plaintiff both signed the memorandum.

         Plaintiff's administrative transfer was effective immediately as of August 18, 2014. He had the option to transfer either to a Patrol Sergeant position or to an Administrative Sergeant position. His pay in either position would have been lower than his pay as a Sergeant in SWAT. Additionally, the same opportunities for pay in relation to call-outs or overtime were not available in the Patrol Sergeant position as in his role in SWAT; however, patrol officers were eligible for overtime. At the time of the administrative transfer, LVMPD had a policy that officers could “re-test” for positions after a year. Despite this policy, Boffelli recommended that there was no amount of rehabilitation or retraining that Plaintiff could perform to return to SWAT.

         Plaintiff did not file a grievance regarding the transfer, and voluntarily retired from the LVMPD before a transfer occurred. Plaintiff testified that since his retirement he has ...


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