Former Officers Cooley, Emmer To Get Back Pay, Forward Pay; Stay Off Force For Now; Ex Officers Sue City For $500,000 In Federal Court

Wednesday, November 06, 2013

Two former city police officers who were fired after an altercation with inmate Adam Tatum and then won reinstatement by an administrative law judge will stay off the force for now. But they are to receive back pay as well as forward pay until an appeal by the city is decided.

Under an agreement between the city and defense attorneys Bryan Hoss and Stevie Phillips for Emmer and attorney Jonathon Guthrie for Cooley, net pay due former officer Cooley (minus Fire and Police Pension contributions) is $14,813.88. Net pay due former officer Emmer (minus Fire and Police Pension contributions) is $16,090.31.

The appeal by the city of the ruling by an administrative law judge has been assigned to Circuit Court Judge Neil Thomas.

No date for a full hearing has been set.

Also, the two ex officers, along with the Tennessee State Lodge of the Fraternal Order of Police, have filed a $500,000 Federal Court lawsuit against the city, the city police department and Police Chief Bobby Dodd.

The 21-page complaint says defendants have made "damaging public statements" about the officers when they were dismissed, during a criminal investigation that Chief Dodd initiated and during the appeal of the case.

It says the investigation and statements "have prevented these officers from obtaining gainful employment" and that "these public comments have imposed an untrue and unjust stigma upon Officers Emmer and Cooley professionally and personally and have effectively denied them the freedom to take advantage of other employment opportunities."

The federal complaint says, "It appears as of the date of filing this complaint that these damages may be determined by Hamilton County Circuit Court in the Writ of Certiorari proceedings. The one measure of damages that cannot be measured in Tennessee state court is the substantial attorney fees paid by the FOP for Officers Emmer and Cooley. Further, plaintiffs Emmer and Cooley have incurred damages to their reputation, honor, integrity, mental and emotional distress and pain and suffering in an amount to be determined by a jury." 

The suit, filed by attorneys Hoss, Phillips and Guthrie, asks $250,000 in compensatory damages and $250,000 in punitive damages.

In a 30-page opinion, ALJ Kim Summers earlier said that "Chattanooga did not show by a preponderance of the evidence that termination of the Grievants was appropriate."  

A Grand Jury earlier declined to sustain charges against the officers, and federal authorities, following an investigation, declined to charge them.

The incident happened June 12, 2012, at a Salvation Army halfway house on McCallie Avenue. Tatum was staying there after his release from federal prison.

He faced charges in connection with the altercation with the officers, but those charges were dismissed.

The incident was caught in a highly-publicized video.

Tatum is suing the city and the officers in Federal Court. 

Hearing officer Summers did not find fault with a neck hold by Officer Emmer and she said "the number of baton strikes may have been extraordinary,  so was the level of Mr. Tatum's resistance."

She noted that Tatum was initially armed with a knife.

The hearing officer did not agree that the actions of the officers were in violation of the department's use of force policy.

She said the level of the use of force and the extent of the injuries of Tatum "were not ideal," but she said it "would not be an acceptable ending to this situation to ruin the lives and careers of two otherwise unblemished and promising police officers. . " 

After her ruling, Police Chief Dodd said he would make the same decision again - to fire them. Mayor Andy Berke hit the decision and said it would be appealed.

Here is the federal lawsuit:

COMES NOW, the Plaintiffs, the Tennessee State Lodge of the Fraternal Order of Police (“FOP”), Sean Emmer and Adam Cooley, by and through the undersigned attorneys, who hereby file this Complaint for damages against the Chattanooga Police Department (“CPD”), the City of Chattanooga (“the City”) and Bobby Dodd in his official capacity as Police Chief for the Chattanooga Police Department. The Plaintiffs would show unto the Court as follows:
PARTIES, JURISDICTION & VENUE 1. Plaintiff the FOP is a Tennessee Non-Profit Corporation doing business in Hamilton County, Tennessee. Its principal address is 13274 Highway 51 South, Suite #3, Atoka, TN 38004. Its mailing address is P.O. Box 8, Tipton, Tennessee 38071.
2. The FOP is an organization consisting of members of both active and retired law enforcement officers including, but not limited to, many members of the CPD. The FOP provides valuable services to its members including but not limited to legal representation.
3. Plaintiff Sean Emmer is a resident of Hamilton County, Tennessee and a member of the FOP. Sean Emmer was an employee and police officer for the CPD until he was terminated on or about November 7, 2012 by Police Chief Bobby Dodd, the CPD and the City for an incident that occurred on June 14, 2012 involving an individual by the name of Adam Tatum at the Salvation Army located on McCallie Avenue in Chattanooga, Tennessee.
4. Plaintiff Adam Cooley is a resident of Hamilton County, Tennessee and a member of the FOP. Adam Cooley was an employee and police officer for the CPD until he was terminated on or about November 7, 2012 by Police Chief Bobby Dodd, the CPD and the City for the same June 14, 2012 incident involving Adam Tatum at the Salvation Army located on McCallie Avenue in Chattanooga, Tennessee.
5. The CPD is a governmental entity operating in Hamilton County, Tennessee.
6. The City of Chattanooga is a municipality operating in Hamilton County, Tennessee.
7. At all relevant times, Defendant Bobby Dodd was the Chief of Police for the CPD. At all relevant times, Chief Dodd had final decision making authority as to the termination of Officers Emmer and Cooley. Indeed, Chief Dodd made the decision to terminate Officers Emmer and Cooley. At all relevant times, Chief Dodd represents the official policy of the CPD and the City as it relates to the termination of Officers Emmer and Cooley.
8. All act(s) and/or omissions in this case occurred in Hamilton County, Tennessee and in the Eastern District of Tennessee. 

9. Jurisdiction and venue are proper in this Court.

FACTS & CAUSES OF ACTION
10. The allegations in Paragraphs 1-9 are incorporated herein by reference.
11. Officers Sean Emmer and Adam Cooley were employed as police officers with the City and the CPD. On June 14, 2012, Officers Emmer and Cooley were involved in an incident with an individual named Adam Tatum at the Salvation Army located on McCallie Avenue in downtown Chattanooga. Officers Emmer and Cooley, along with other officers, arrested Adam Tatum.
12. During this incident, Officers Emmer and Cooley were required to use force in getting Mr. Tatum under control and affecting an arrest. Video cameras at the Salvation Army recorded many of the events of the arrest. CPD obtained the videotape of the incident within hours from the Salvation Army cameras.
13. As a result of that incident, the City and CPD launched an internal affairs investigation into both Officers Emmer and Cooley’s actions during the arrest of Adam Tatum.
14. At all relevant times, because Officers Emmer and Cooley were CPD employees and police officers, the two (2) officers have a due process property interest in their employment.
15. Pursuant to the policy of the CPD and the City Code, just cause is required before terminating Officers Emmer and Cooley.
16. Officers Emmer and Cooley have procedural and substantive due process interests in their employment. The CPD and the City were therefore required to meet and comply with certain procedural due process protections prior to conducting Officers Emmer and Cooley’s disciplinary hearings. The CPD and the City were required to conduct the hearing pursuant to well established doctrine enunciated by the United States Supreme Court in Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

17. On September 17, 2012, Police Chief Bobby Dodd, acting on behalf of the CPD and the City, sent letters to Officers Emmer and Cooley. See Collective Exhibit 1. The letters advised them of a disciplinary hearing set for October 10, 2012, notified them that the allegation was excessive use of force from the Tatum arrest, and stated:
The specific facts of the charges against you are set out in the Internal Affairs report that is enclosed with this letter.
During the hearing you may present your position in this matter before any disciplinary action is administered to you concerning this incident. If you wish, you may be represented by counsel at this hearing.
Be advised this hearing may result in disciplinary action up to suspension without pay from the department.
18. Chief Dodd, acting on behalf of the CPD and the City, signed the September 17, 2012 letters to both Officers Emmer and Cooley. Id.
19. Chief Dodd copied the September 17, 2012 letters to City Attorney Phil Noblett. Id.
20. Officers Emmer and Cooley each received the September 17, 2012 letter.
21. Two days later, on September 19, 2012, Chief Dodd, acting on behalf of the CPD and the City, sent a second letter to Officers Emmer and Cooley. See Collective Exhibit 2. The letters advised them of a scheduling conflict for the previously scheduled October 10, 2012 disciplinary hearing and changed the disciplinary hearing date to October 5, 2012. The letter further notified them that the allegation was excessive use of force from the Tatum arrest and stated:
The specific facts of the charges against you are set out in the Internal Affairs report that is enclosed with this letter. During the hearing you may present your position in this matter before any disciplinary action is administered to you concerning this incident. If you wish, you may be represented by counsel at this hearing.
Be advised this hearing may result in disciplinary action up to suspension without pay from the department.
22. Chief Dodd, acting on behalf of the CPD and the City, signed the September 19, 2012 letters to both Officers Emmer and Cooley. Id.
23. Chief Dodd copied the September 19, 2012 letter(s) to City Attorney Phil Noblett. Id.
24. Officers Emmer and Cooley each received the September 19, 2012 letter.
25. On September 21, 2012, Chief Dodd caused a third letter to be sent to Officers Emmer and Cooley. See Collective Exhibit 3. These September 21, 2012 letters placed Officers Emmer and Cooley on administrative leave with pay pending the outcome of the internal affairs investigation. At all times between June 14, 2012 and September 21, 2012, Officers Emmer and Cooley worked as CPD law enforcement officers and carried out their normal day-to-day duties on patrol. At all times, CPD, the City and Chief Dodd had possession of the Salvation Army video-tape.
26. As Chief Dodd’s two letters dated September 17 and 19, 2012 stated, the CPD and the City provided to Officers Emmer and Cooley a forty-four (44) page Internal Affairs Investigation Report prepared by IA Investigator Alexis Mercado. See Exhibit 4. Officer Mercado made no findings that Officers Emmer or Cooley had violated any provision of CPD policy or the City Code or that they had used excessive force. To the contrary, Investigator Mercado concluded that “the Officers followed the use of form continuum as best as possible” during the June 14, 2012 incident with Adam Tatum. Id. at p. 40. 
27. On October 11, 2012,1 Chief Dodd, as an agent for the CPD and the City, sent yet another letter to Officers Emmer and Cooley. See Collective Exhibit 5. The letter again notified them that the allegation was excessive use of force during the Tatum incident and stated, “[d]ue to a report from the Tennessee P.O.S.T. Commission, the disciplinary hearing has been rescheduled for November 7, 2012…” Furthermore, like the September 17, 2012 and September 19, 2012 letters, the October 11, 2012 letter advised:
The specific facts of the charges against you are set out in the Internal Affairs report that is enclosed with this letter.
During the hearing you may present your position in this matter before any disciplinary action is administered to you concerning this incident. If you wish, you may be represented by counsel at this hearing.
Be advised this hearing may result in disciplinary action up to suspension without pay from the department.
28. Chief Dodd, acting on behalf of the CPD and the City, signed the October 11, 2012 letters to both Officers Emmer and Cooley. Id.
29. Officers Emmer and Cooley each received the October 11, 2012 letter.
30. On three (3) occasions, September 17, 2012, September 19, 2012 and October 11, 2012, Chief Dodd, acting on behalf of the CPD and the City, and with the knowledge of the City Attorney’s office advised these Officers that they only faced up to suspension if Adam Tatum’s excessive force allegation was sustained. Pursuant to CPD Policy, the maximum length of a suspension is twenty-eight (28) days. Officers Emmer and Cooley therefore believed that the harshest punishment they faced was a twenty-eight (28) day suspension in preparation for their disciplinary hearing.
1 Officers Emmer and Cooley, through their attorneys, had requested to move the October 5, 2012 hearing date due to scheduling issues.

31. On October 15, 2012, counsel for Officers Emmer and Cooley sent a letter to Chief Dodd requesting that the CPD and the City provide to the officers two (2) things: (1) a copy of the Tennessee P.O.S.T. commission report referenced in Chief Dodd’s letter dated October 11, 2012; and (2) “Any other report, letter or document from anyone else in IA or the CPD which substantiates the allegations of excessive force.” See Exhibit 6. Counsel stated in his letter, “we believe that these officers are entitled to be put on notice as to what they may have done that is ‘excessive.’” Id.

32. The October 15, 2012 letter acknowledged receipt of Investigator Mercado’s IA report, which exonerated the Officers, but specifically requested any other IA report that substantiated the allegation of excessive force.
33. Unbeknownst to Officers Emmer and Cooley, and at the time of the October 15, 2012 letter request by the officers for other IA reports, Captain Susan Blaine, Internal Affairs Commander, had also written a report dated September 4, 2012 (3 pages in length). Blaine’s IA report was submitted to Chief Dodd on or after September 4, 2012. On September 7, 2012, Assistant Chief Randy Dunn sustained Captain Blaine’s IA findings and on September 10, 2012, Deputy Chief Tommy Kennedy sent a letter to Chief Dodd concurring with Assistant Chief’s Dunn’s recommendation. Neither Blaine’s report nor the Assistant Chief’s findings were ever provided to these Officers prior to their disciplinary hearing or prior to the time in which Police Chief Dodd made the decision to fire them on November 7, 2012.
34. Chief Dodd had actual knowledge that Blaine’s IA report existed. Further, two (2) other Assistant Chiefs had sustained her report when he received the October 15, 2013 letter from counsel for Officers Emmer and Cooley, which specifically requested any other IA report. 
35. Despite Chief Dodd’s actual knowledge that Captain Susan Blaine’s report existed and his actual knowledge that Officers Emmer and Cooley had requested this report, Chief Dodd never advised the Officers of its existence and never provided the report to the Officers as they had specifically requested.
36. Captain Blaine’s IA report was never provided to Officers Emmer and Cooley prior to their disciplinary hearings, which occurred on November 7, 2012. Furthermore, during their hearing, Captain Blaine read her report and confronted the officers directly as to her findings and conclusions.
37. The next day, October 16, 2012, Chief Dodd responded to Officers Emmer and Cooley’s letter to him dated October 15, 2012. See Exhibit 7. In response, Chief Dodd advised that he would provide the Tennessee P.O.S.T. Commission report within two (2) days of his receipt of that report. The letter goes on to discuss certain aspects of Investigator Mercado’s IA Report but fails to indicate, acknowledge or identify any other report prepared by the CPD or IA involving the Adam Tatum incident, including Captain Blaine’s IA report.
38. Attorneys for the City also had knowledge of the Officer’s request for other IA reports pursuant to their October 15, 2012 letter and also knew prior to the November 7, 2012 disciplinary hearings that Captain Blaine had issued her September 4, 2012 IA report. Yet, attorneys for the City never provided any other IA report to Officers Emmer and Cooley prior to their disciplinary hearing.
39. On November 7, 2012, Chief Dodd conducted separate disciplinary hearings for both Officers Emmer and Cooley. Attorneys for the City of Chattanooga were present. Officers Emmer and Cooley were also represented by counsel. During the hearings, Captain Blaine read her IA Report, which had never been provided to Officers Emmer and Cooley. Chief Dodd also
Case referenced the Tennessee P.O.S.T. Commission Report, which had never been provided to Officers Emmer and Cooley as he had promised in his October 16, 2012 correspondence.2
40. During the hearing, Officers Emmer and Cooley attempted to elicit statements in their defense from their first-line supervisor, Sergeant Darryl Turner who had been their supervisor for approximately two (2) years prior to the Adam Tatum incident and until they were placed on administrative leave over three (3) months later. Sergeant Turner has over twenty-five (25) years of experience in the CPD.
41. The CPD’s Disciplinary Policy states “[t]he role of a supervisor, especially a first-line supervisor, is crucial in the disciplinary process. First-line supervisors have the best opportunity to observe the conduct and appearance of officers, and detect those instances when disciplinary action is warranted . . . . First-line supervisors also have the opportunity to understand the personality traits of the personnel under their supervision, and to determine the most effective methods of discipline.” Nonetheless, during the hearing, Chief Dodd immediately interrupted Sergeant Turner and reprimanded him for his conduct on the night of the incident, effectively preventing Sergeant Turner from expressing his opinion about the allegations against Officers Emmer and Cooley and the appropriate disciplinary action, if any.
42. On November 7, 2012, at the end of disciplinary hearing, Chief Dodd terminated Officers Emmer and Cooley. The decision to terminate was made by Chief Dodd as the Chief of Police for the Chattanooga Police Department and the City of Chattanooga.
43. Chief Dodd’s termination of Officers Emmer and Cooley contradicted his three (3) previous letters to the officers dated September 17, 2012, September 19, 2012 and 
footnote Despite the Officers’ requests, neither the City nor the CPD provided any reports other than Investigator Mercado’s until the Officers administratively appealed their terminations.
October 11, 2012 in which Chief Dodd had explicitly stated that the Officers only faced up to suspension without pay as a result of the Tatum incident.
44. At all times prior to November 7, 2012, Chief Dodd, on behalf of the CPD and the City, had advised these officers in three (3) separate letters sent on three (3) separate dates that they only faced up to suspension without pay. Officers Emmer and Cooley were never notified that they faced potential termination.
45. Further, at all times prior to November 7, 2012, Chief Dodd, on behalf of the CPD and the City, refused to provide to these Officers any IA report which found that they had violated CPD policy, specifically Captain Blaine’s IA report, and refused to provide these Officers with the Tennessee P.O.S.T. Commission Report even in light of these Officers’ specific request dated October 15, 2012 to provide such information to them prior to any hearing and in light of Chief Dodd’s promise that he would at least provide the P.O.S.T. Commission Report.
46. Following their terminations on November 7, 2012, these officers timely appealed their terminations pursuant to the Chattanooga City Code and requested an administrative hearing before an Administrative Law Judge (“ALJ”). While their appeal was pending, the Officers were not paid and did not receive any benefits from the CPD or the City.
47. Between their terminations on November 7, 2012 and the ALJ trial which took place on June 26, 2013, June 27, 2013 and July 3, 2013, the parties conducted written discovery and exchanged hundreds of pages of discoverable information including training videos, training manuals, IA reports, the criminal investigation of Adam Tatum, witness statements and other discoverable information. Officers Emmer and Cooley each incurred substantial attorney fees in preparation for the ALJ trial of this matter. Because the officers are members of the FOP, the FOP paid for the attorney fees on behalf of the officers.
48. Between their terminations on November 7, 2012 and their ALJ trial, which commenced June 26, 2013, Chief Dodd, in his official capacity, made public statements about the Officers, which were printed and published on the internet, and which harmed their reputation and hurt their ability to seek and obtain gainful employment. For example, on March 1, 2013, the Chattanooga Times Free Press published a press conference held by Chief Dodd who stated, “[T]hese Officers do not need to be on the streets…I personally would not subject the citizens of Chattanooga to these two officers and the type of action they took.” Chief Dodd also made unjust and untrue statements to the effect that these Officers’ actions were criminal.
49. Further, between November 7, 2012 and June 26, 2013, Chief Dodd attempted to charge these Officers criminally. Chief Dodd ordered that other CPD officers present criminal charges against Officers Emmer and Cooley to the Hamilton County Grand Jury. The Hamilton County Grand Jury found that there was not probable cause to charge these Officers and issued a No Bill. After he was unable to obtain state court criminal charges, Chief Dodd referred the matter to the FBI and federal law enforcement officials. The FBI performed an investigation and ultimately concluded, “there was no prosecutable offense.” Further, during the ALJ trial in this matter, Chief Dodd accused the Officers of lying during the IA investigation and subsequent disciplinary hearing.
50. Both the Hamilton County Grand Jury proceedings and the federal investigation were reported by local and regional media in print as well as over the internet. These actions by Chief Dodd, in his official capacity, directly led to the increased attention and media exposure, which has harmed these Officers by injuring their reputations in the community and beyond, including preventing them from gaining meaningful employment.
51. On June 26, 2013, June 27, 2013 and July 3, 2013, the ALJ conducted a three (3) day trial on the Officers’ claims that the City violated their procedural due process rights as well as the claims of excessive force in the Adam Tatum incident. The parties introduced fifty-nine (59) exhibits, which included many of the Exhibits attached to this Complaint. Chief Dodd testified for nearly five (5) hours. The City also called an expert witness in addition to another law enforcement witness who authored the Tennessee Post Commission Report. The ALJ was a neutral and detached judge from Nashville, Tennessee.
52. Following the three (3) day trial, the parties presented proposed written findings of fact to the ALJ after preparation of the over 1200 pages of transcript. Ultimately, after considering the evidence at trial and the written arguments by the parties, the ALJ issued an extensive, thirty-page (30) Order. The Order was signed by the presiding Judge, Kim Summers, and Judge Richard Collier, the Director of the Administrative Procedures Division, Office of the Secretary of State. The ALJ found that there was no reasonable basis for the Officers’ terminations and that they were terminated in contravention of CPD Policy and the City Code. Further, the ALJ also found that Officers Emmer and Cooley acted in accordance with their CPD training in dealing with a very difficult, and violent offender who was clearly resisting arrest. In conclusion, the ALJ ordered full reinstatement, back pay, benefits and all costs. See Exhibit 8, ALJ Order.
53. As to the City violating these Officers’ due process rights, the ALJ found:
[t]he Officers were never placed on notice, prior to the November 7, 2012 disciplinary hearing, that the June 14, 2012 incident might result in their termination from the Chattanooga Police Department. The Officers were not given notice of the evidence against them. In absence of proper notice, the Officers were unable to adequately prepare for their disciplinary hearings. Id. at p. 29-30.
54. Also as to the City violating these Officers’ due process rights, the ALJ found that “[i]t would have been customary for Sergeant Turner to make a recommendation up the chain of command on appropriate disciplinary action for Officers Emmer and Cooley or at least to be involved in the decision. However, he was not consulted or allowed to participate. Sergeant Turner would willingly work with Officers Emmer and Cooley again if they were reinstated.” Id. at 17.
55. The ALJ further found that the Officers did not use excessive force, but rather found, among other things, the following:
50. While the number of baton strikes may have been extraordinary, so was the level of Mr. Tatum’s resistance.
51. Certainly, the use of force and the injuries sustained by Mr. Tatum were not ideal but neither were they dictated by the conduct of Officers Emmer and Cooley. As such, it would not be an acceptable ending to this situation to ruin the lives and careers of two otherwise unblemished and promising police officers who came across the path of Mr. Tatum only because he chose to violate his parole by taking cocaine, engaging in violent behavior, and disregarding lawful directives from law enforcement. It was Mr. Tatum, not Officers Emmer and Cooley, who set in motion this very regrettable chain of events as well as the unfortunate, but avoidable, conclusion.
52. Officers Emmer and Cooley paid a price for crossing paths with Mr. Tatum, but, because of their actions, no one paid the ultimate price.
53. Notwithstanding departmental policy, it does not appear that any deference was given to the Officers in the field who were dealing with a very difficult situation.
54. Notwithstanding departmental policy, Sergeant Turner was not given the opportunity to recommend appropriate discipline for Officers Emmer and Cooley who were under his direct supervision.
55. Notwithstanding departmental policy, Officers Emmer and Cooley were not treated like valuable assets and given the opportunity for retraining as specified in PER-6. However, no evidence was presented that additional training would have even been beneficial to address such an extraordinary situation—training cannot always prepare an officer for reality.
Id. at p. 29.
56. The ALJ concluded the following: “…it is hereby ORDERED that the termination of Officer Sean Emmer and Officer Adam Cooley is OVERTURNED. The Officers shall be REINSTATED to their former positions with the Chattanooga Police Department and shall be made whole with full back pay, seniority and benefits. The costs of this proceeding are assessed against the City of Chattanooga.” Id. at p. 30.
57. Shortly after the ALJ ruled, current Mayor Andy Berke, whose edicts and acts represent the City’s official policy, publicly adopted Chief Dodd’s termination decision, stating, “[a]fter carefully studying the opinion and considering our options with Police Chief Dodd and City Attorney Hinton, I have ordered the City Attorneys’ Office to appeal this decision on the first day allowed. . . . I stand with Chief Dodd on his decision to terminate the Officers.” Thereafter, City Council, whose edicts and acts represent the City’s official policy, publicly adopted Chief Dodd’s termination decision by unanimously passing a resolution backing Mayor Berke’s decision to appeal the ALJ ruling. Resolution No. 27665. See Exhibit 10.
58. Defendants subsequently filed a Petition for Writ of Certiorari in the Hamilton County Circuit Court challenging the ALJ’s decision. See Exhibit 9, Amended Petition for Writ of Certiorari (Exhibits Ommitted). The Writ does not contain any challenges to the ALJ decision that Officers Emmer and Cooley’s procedural due process rights were violated. Id. The Writ does not allege that the ALJ made any error in her findings as to the notice, or lack thereof, provided to these officers prior to their disciplinary hearing.
59. As a direct and proximate result of the City violating these Officers’ substantive and procedural due process rights, these Officers have suffered damages. They are entitled to be made whole with full back pay, seniority, full benefits and to receive their attorney fees for having to defend themselves in the ALJ proceedings. Specifically, as a measure of their damages, Officers Emmer and Cooley have had to incur thousands of dollars in attorney fees in defending themselves at the ALJ trial and in defending themselves in the Writ of Certiorari proceedings in Hamilton County Circuit Court. They have been damaged and continue to be damaged as a direct and proximate result of the City’s and the CPD’s violation of their substantive and procedural due process rights.
60. Plaintiff the FOP hires, retains and pays for attorneys for its members in situations such as this one. Both Officers Emmer and Cooley are paying members of the FOP.
61. Plaintiff the FOP has paid attorney fees for Officers Emmer and Cooley since their termination and has been directly and proximately damaged by the violation of the Officers’ substantive and procedural due process rights.
62. Plaintiffs Emmer and Cooley are the prevailing parties in the ALJ trial. Given the complexity of the case, the voluminous written discovery, the seriousness of the case, and three (3) days of witness testimony, Officers Emmer and Cooley felt compelled to hire counsel to defend themselves in this action.
63. This lawsuit is intended to recover those attorney fees spent by the FOP on behalf of Officers Emmer and Cooley following their terminations from the CPD on November 7, 2012 including attorney fees incurred in preparation for the ALJ proceedings, the ALJ trial, and the Writ of Certiorari proceedings in Hamilton County Circuit Court. The amount of those attorney fees will be provided to counsel for the Defendants and proven at trial.
64. Further, there are no City Code provisions, Tennessee Rules of Civil Procedure or Tennessee statutes that allow Officers Emmer and Cooley and the FOP to recover their attorney fees spent during the administrative appeal, trial and/or Writ of Certiorari proceedings. Therefore, their only means of recovering their attorney fees in this action is pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988. To the extent that the Plaintiffs are required to make such a showing, state remedies are wholly inadequate to fully compensate Officers Emmer and Cooley and the FOP.
65. Pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, the Plaintiffs file this cause of action against the Defendants seeking those attorney fees in an amount to be determined by the Court and/or Jury.
66. Further, pursuant to 42 U.S.C. § 1988, Plaintiffs are entitled to recover their attorney fees and costs for bringing this lawsuit.
CAUSES OF ACTION
COUNT 1—42 U.S.C. § 1983—PROCEDURAL DUE PROCESS VIOLATIONS
67. All allegations contained in Paragraphs 1 thru 66 are incorporated herein by reference.
68. At all relevant times, the Defendants acted under color of state law.
69. At all relevant times, the Defendants conduct deprived the Plaintiffs of rights, privileges, or immunities secured by the Constitution and/or laws of the United States.
70. Plaintiffs aver that the Defendant(s) violated their procedural due process rights secured by the 5th and 14th Amendments to the United States Constitution.
71. Plaintiffs Emmer and Cooley have both underlying liberty and property interests in their continued employment with the CPD and are entitled to invoke the due process protections set out in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). 
72. Plaintiffs aver that they have recognized liberty and property interests in their continued employment, their job, their career, and the benefits derived from such employment. Further, Plaintiffs aver that they have liberty interest in their good name, reputation, honor and integrity and have a constitutional right to take advantage of other employment opportunities.
73. Plaintiffs were deprived of their liberty and property interests by the manner in which Defendants failed to notify Plaintiffs of the charges against them, represented to Plaintiffs that they faced a lesser punishment then was ultimately imposed, and denied Plaintiffs a meaningful opportunity to be heard at their disciplinary hearings.
74. Plaintiffs specifically aver that Defendants’ deprivation of these Officers’ liberty and property was “caused by conduct pursuant to established state procedure” and that Plaintiffs are therefore not required to “plead and prove the inadequacy of administrative and state court remedies in order to state a claim under § 1983.” See Rodgers et al. v. 36th District Court et al., No. 11-2201, 2013 WL 3357591, *6 (6th Cir. 2013); Mitchell v. Fankhauser, et al., 375 F.3d 477, 484 (6th Cir. 2004).
75. If this Court should characterize Plaintiffs’ claims as alleging that Defendants’ engaged in “random and unauthorized conduct,” Plaintiffs aver that the remedy to address their back pay, seniority and benefits as ordered by the ALJ is not adequate to address the Plaintiffs’ attorney fees, which they were forced to incur in contesting their terminations. Id. Plaintiffs allege that the state court remedy is therefore inadequate both in form and in substance. Plaintiffs therefore request relief pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988.
76. As a direct and proximate result of the Defendants’ violation of the Plaintiffs’ procedural due process rights, the Plaintiffs have been harmed. Specifically, they are entitled to full back pay, full benefits, full seniority and to be reinstated to the Chattanooga Police Department. Plaintiffs reserve the right to include these as their damages and to amend their damages, but it appears as of the date of filing of this complaint, that a Tennessee state court in the Writ of Certiorari proceedings alleged above may determine these damages.
77. The one measure of damages that cannot be measured in Tennessee state court is the attorney fees paid by the FOP for Officers Emmer and Cooley, which are substantial. Plaintiffs aver that they have been further damaged as a direct and proximate result of the denial of their procedural due process rights in that they have incurred thousands of dollars in attorney fees in appealing their terminations since November 7, 2012 to their present defense of the ALJ’s Order on appeal in Hamilton County Circuit Court. Plaintiffs aver that they are continuing to be damaged as they incur additional attorney fees. This amount will be provided to the Defendants and proven at trial. Further, Plaintiffs Emmer and Cooley have incurred damages to their reputation, honor, integrity, mental and emotional distress and pain and suffering in an amount to be determined by a jury.
78. The Plaintiffs pray for both compensatory damages, punitive damages and attorney fees in an amount to be determined by the jury. Plaintiffs allege that punitive damages may be awarded given the reckless, malicious and intentional acts of the Defendant(s). The Plaintiffs reserve the right to amend this Complaint pending the results of the Writ of Certiorari proceeding.

COUNT 2—42 U.S.C. § 1983—SUBSTANTIVE DUE PROCESS VIOLATIONS
79. The allegations in Paragraphs 1-78 are incorporated herein by reference.
80. Plaintiffs further aver that there has been a substantive due process violation as a result of Defendants acting under color of state law and violating a fundamental right of the Plaintiffs. Plaintiffs Emmer and Cooley, as public employees, have a liberty interest in the protection of their good name, reputation, honor, integrity, and their freedom to take advantage of employment opportunities. Specifically, Defendants’ public statements and failed criminal investigations into the actions of Officers Emmer and Cooley have prevented these Officers from obtaining gainful employment. Plaintiffs further aver that Defendants’ conduct “shocks the conscious” and that they are entitled to damages as a direct and proximate result of such conduct.
81. Defendants by their public comments and actions have severely damaged Plaintiffs’ standing and associations in the community. Defendants made damaging public statements to the media which were published in print and on the internet. These public comments were made upon the terminations of Officers Emmer and Cooley, during the criminal investigations that Chief Dodd initiated, and since the Plaintiffs’ cases have been on appeal. These public comments have imposed an untrue and unjust stigma upon Officers Emmer and Cooley professionally and personally and have effectively denied them the freedom to take advantage of other employment opportunities.
82. As a direct and proximate result of the Defendants’ violation of the Plaintiffs’ substantive due process rights, the Plaintiffs have been harmed. Specifically, they are entitled to full back pay, full benefits, full seniority and to be reinstated to the CPD. Plaintiffs reserve the right to include these as their damages and to amend their damages. It appears as of the date of filing this complaint that these damages may be determined by Hamilton County Circuit Court in the Writ of Certiorari proceedings alleged above. The one measure of damages that cannot be measured in Tennessee state court is the substantial attorney fees paid by the FOP for Officers Emmer and Cooley. Further, Plaintiffs Emmer and Cooley have incurred damages to their reputation, honor, integrity, mental and emotional distress and pain and suffering in an amount to be determined by a jury. Case 1:13-cv-00371-HSM-WBC Document 1 Filed 11/05/13 Page 19 of 21 PageID #: 1983. The Plaintiffs pray for both compensatory damages, punitive damages and attorney fees in an amount to be determined by the jury. Plaintiffs allege that punitive damages may be awarded given the reckless, malicious and intentional acts of the Defendant(s). The Plaintiffs reserve the right to amend this Complaint pending the results of the Writ of Certiorari proceeding.

COUNT 3—42 U.S.C. § 1988
84. All allegations contained in Paragraphs 1 thru 83 are incorporated herein by reference.
85. Pursuant to 42 U.S.C. § 1988, should the Plaintiffs prevail, Plaintiffs are entitled to recover their attorney fees and costs for bringing this action. Plaintiffs pray for their attorney fees and costs in this cause.

WHEREFORE PREMISES CONSIDERED, the Plaintiffs pray for the following:
1. For the Court to issue process and for the Defendants to answer within the time period provided by law or agreed upon by the parties or pursuant to local rules.
2. For a jury to be empanelled to determine the issues herein.
3. Pending the outcome of the pending Writ of Certiorari proceeding in Hamilton County Circuit Court, the Plaintiffs request the opportunity, if necessary, to amend this Complaint.
4. For a judgment against the Defendants in an amount to be determined at trial but no less than $250,000 in compensatory damages and $250,000 in punitive damages.
5. For all costs, including both discretionary and non-discretionary costs for bringing this lawsuit, including attorney fees.
6. All costs are taxed against the Defendants. 
7. Pre-judgment and Post-judgment interest.
8. Any other relief to which Plaintiffs may be entitled.
Respectfully submitted,
DAVIS & HOSS, P.C.
__/s/ Bryan H. Hoss
Stevie Phillips, TN BPR# 027467
Bryan H. Hoss, TN BPR# 021529
Attorneys for the Tennessee State Lodge Fraternal Order of Police and Officer Sean Emmer
508 East 5th Street
Chattanooga, TN 37403
(423) 266-0605
(423) 266-0687 fax
stevie@davis-hoss.com
bryan@davis-hoss.com
_/s/ R. Jonathan Guthrie__________
R. Jonathan Guthrie, TN BPR# 20762
Attorney for Officer Adam Cooley
537 Market Street, Suite 202
Chattanooga, TN




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