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NITSCHNEIDER v. MILLER

May 6, 1993

SUSAN NITSCHNEIDER, MICHAEL CULAT and THOMAS FISHER, Plaintiffs,
v.
CHARLES H. MILLER, individually and as Chief of Police of the Antioch Police Department, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 In retaliation for their support of Mayor Robert Wilton, plaintiffs Susan Nitschneider ("Nitschneider"), Michael Culat ("Culat"), and Thomas Fisher ("Fisher") claim that defendant Charles Miller ("Miller"), Chief of Police of the Antioch Police Department, filed disciplinary charges against each of them. Alleging that their First Amendment rights to free speech and association were violated, plaintiffs brought suit against Miller, individually and in his official capacity, under 42 U.S.C. § 1983. Presently before us is Miller's motion for summary judgment. For the reasons set forth below, we grant the motion in part, and deny it in part.

 I. Factual Background

 The events at issue here began in 1989, in the shadow of a hotly contested mayoral race in Antioch. Miller, the Chief of Police for Antioch, supported the incumbent, Raymond Toft, over the challenger, former mayor Robert Wilton. One of the issues in the election was whether Wilton, if elected, would reappoint Miller as Chief of Police. Although Culat, who was a patrolman in the Antioch Police Department ("Department") at the time of the election, and Nitschneider, a radio dispatcher, did not support Mayor Wilton's bid for office, Fisher, one of two lieutenants on the police force and a longtime friend of Wilton's, did endorse his candidacy.

 In April, 1989, the voters chose Wilton to be mayor of Antioch. Several months later, in June, Wilton informed Miller that he would like his resignation. When Miller refused to resign, Wilton told Miller that he intended to remove him as Chief of Police.

 At about the same time, Miller asked Culat, the officer in charge of evidence, to prepare a report detailing the whereabouts of all guns that had wended their way through the Department evidence locker since 1978. At the conclusion of his investigation, Culat prepared three lists tracking the disposition of the guns. Although there is some dispute as to the content of each list, the lists made clear that there were a number of guns for which no one could account.

 After Culat submitted his findings to Miller, the Chief turned around and developed a report for Mayor Wilton. Miller's report purported to explain what had become of the unaccounted for weapons. In the wake of Miller's recital, Wilton met directly with Culat and asked him whether Miller's report matched Culat's. Culat replied that it did not, adding that he believed some of the missing guns had been given to officers in the Department.

 Ultimately, Wilton and Culat, along with Fisher, presented the issue of the errant guns to the State's Attorney's office, which declined to investigate the matter. Subsequently, the State Police conducted an independent investigation, turning up no evidence of wrongdoing.

 During this time, Culat worked under Wilton's direct supervision. For example, while on duty, Culat scoured area taverns for signs of Miller's car, logging the time spent as "investigation." In general, Culat reported directly to Wilton on matters pertaining to Miller. Eventually, Miller grew to distrust Culat. *fn1"

 In October, 1990, Miller gave Culat a two-day suspension for negligently losing a money order, failing to tag evidence, and for behavior unbecoming an officer. On appeal, the Board of Fire and Police Commissioners ("Board") reduced the suspension to a written reprimand on one of the charges.

 In the fall of 1990, Department employees began reporting various troublesome incidents, such as damage to squad cars, mail tampering, and missing property. Fisher and Culat were among those reporting problems. In response to these reports, Miller secretly installed a security camera in the squad room. Other than Miller, only Lieutenant Charles Watkins knew about the hidden camera.

 The tapes revealed various misdeeds and misdemeanors by Department employees. The camera, along with audiotapes of radio and phone conversations, recorded Officers Kay, Culat, Fisher and Walsh, along with radio operators Good, Linehart and Nitschneider looking through, opening, or making photocopies of Miller's mail, captured Sergeant Lange using vulgar language (language Miller deemed inappropriate), and recorded ...


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