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Wright v. Village of Franklin Park

March 25, 2008

ROBERT WRIGHT, PLAINTIFF,
v.
VILLAGE OF FRANKLIN PARK, A MUNICIPAL CORPORATION, RANDALL PETERSEN, INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AS THE CHIEF OF POLICE OF THE VILLAGE OF FRANKLIN PARK, MICHAEL WITZ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE COMMANDER OF THE FRANKLIN PARK POLICE DEPARTMENT, BARBARA CASCIO, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS AN INVESTIGATOR AND SERGEANT OF THE FRANKLIN PARK POLICE DEPARTMENT, AND THE BOARD OF FIRE AND POLICE COMMISSIONS OF THE VILLAGE OF FRANKLIN PARK, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Wright is a sergeant in the Village of Franklin Park Police Department, and is the president of the Illinois Fraternal Order of Police Lodge #47. In this lawsuit, he alleges that Village officials retaliated against him for the exercise of his First Amendment rights by suspending him for fifteen days in 2005. The Defendants are former chief of police Randall Petersen, sergeants Michael Witz and Barbara Cascio, the Board of Fire and Police Commissioners ("the Board"), and the Village of Franklin Park ("the Village"), which is a unit of local government in Cook County. Wright claims that Petersen, with the help of Witz and Cascio, filed termination charges against him in December of 2004 in retaliation for activities that took place years earlier-most significantly, his public advocacy in the late nineties for Petersen's removal as police chief-as well as for his continued advocacy of union members' grievances. These charges were based primarily upon Wright's failure to promptly respond to the scene of a shooting incident on August 20, 2004. The Board held an adversarial hearing over several days from February through May of 2005, and found that Wright had violated several department rules, but it declined to terminate Wright, choosing instead to impose a fifteen-day suspension.

Wright's six-count complaint alleges that the individual defendants are liable under 42 U.S.C. § 1983 for violating his rights to freedom of expression and association (Count I) and his right to equal protection (Count II), and for conspiring to violate his constitutional rights (Count III). He claims that their conduct also constituted an intentional infliction of emotional distress under Illinois law (Count IV). He asks this court to review the decision of the Board in an action for administrative review (Count V), and further charges that Petersen violated § 1983 by denying him due process in his hearing before the Board (Count VI). Wright also argues that the Village is subject to Monell liability for Petersen's acts.

Petersen, Witz, Cascio, and the Village have moved for summary judgment on all of Wright's claims. Additionally, Wright, Petersen, and the Board have submitted briefs discussing whether or not the court should sustain the Board's decision on administrative review. For the reasons discussed below, the court affirms the Board's decision, and grants the Defendants' motions for summary judgment.

BACKGROUND

The following facts are drawn from the pleadings, the parties' Local Rule 56.1 submissions, and from the administrative record.

I. The Parties

Wright is a sergeant in the Franklin Park Police Department, where he has worked since 1990. (LR 56.1 Resp. [203] ¶ 2.) As an officer, Wright has worked both as a street sergeant and as the acting Watch Commander on the midnight shift. (Id.) His duties as acting Watch Commanderinclude supervising officers working on the midnight shift and taking responsibility for what goes on at the station. (Id.) Wright is also the president of the police officers' union; in this capacity, he files grievances on behalf of union members, advocates for members' rights, and represents the membership generally. (Id. ¶ 22.)

Petersen was the Chief of Police in Franklin Park from an unknown point in time until after the Amended Complaint was filed on November 9, 2006, except for a brief period in the Spring of 1999, when he was temporarily replaced by Rocky Fortino. (LR 56.1 Resp. ¶ 4, Summ. J. Resp. [204] at 2; Petersen Summ. J. Mem. [175] at 12.) As Chief of Police, Petersen does not have the authority to discharge police officers, or suspend them for more than five days, but he does have the authority to order investigations into wrongdoing and recommend that the Board order a suspension or dismissal. (LR 56.1 Resp. ¶¶ 13-14.)

Witz is a sergeant, appointed by Petersen to serve as Patrol Division Commander. (LR 56.1 Resp. ¶ 11.) In this capacity, he was in charge of all the department's internal investigations. (Id. ¶5.) Cascio, also a sergeant, was appointed by Petersen to assist Witz as an investigator. (Id. ¶ 6.) The Board is an administrative body, charged with overseeing the discipline of Franklin Park police officers. (LR 56.1 Resp. ¶ 7.) The Village is a unit of local government in Cook County, Illinois. (Id. ¶ 3.)

II. Wright's Advocacy of Union-Related Issues

Although the parties have offered few details regarding Wright's activities, they agree that he engaged in the advocacy discussed below.

First, in approximately 1997, Wright advocated for "open residency," meaning the right of police officers to live outside the boundaries of the Village. (LR 56.1 Add'l Resp. [214] ¶ 3; Wright Dep. Pt. I, 9/15/06, at 37:11.) The following year, Wright "led a letter writing campaign" regarding what he believed to be the "improper use of police insignia." (LR 56.1 Add'l Resp. ¶ 4.) This issue arose out of Petersen's decision to authorize the use of official police insignia on t-shirts, apparently as a public relations or campaign strategy. (Wright Dep. Pt. I at 189:21-190:5.) Wright believed that this presented a "public safety issue"; his views resulted in "public altercations" between Wright, the Mayor, and the Mayor's wife. (LR 56.1 Add'l Resp. ¶ 4; Wright Dep. Pt. I at 191:7-12.)

In October of 1998, Wright "spearheaded" a union no-confidence vote against Petersen, who was by then the Chief of Police. (LR 56.1 Add'l Resp. ¶ 2; Petersen Am. Answer [119] ¶ 16.) As noted earlier, in March of 1999, Petersen was briefly removed from office and replaced by Lieutenant Rocky Fortino; at that time, Wright, on behalf of the Union,posted a notice indicating its commitment to work with Fortino. (LR 56.1 Add'l Resp. ¶ 2; Petersen Am. Answer ¶ 17.) The parties have not made clear why Petersen was removed, or whether it was a result of Wright's or the union's efforts. After a municipal election, Petersen regained his office in April of 1999. (Petersen Am. Answer ¶ 18.) Petersen admits that Wright "publicly opposed" his reappointment at this time,*fn1 and that Wright chaired a union meeting in which members voted in favor of retaining Fortino. (LR 56.1 Add'l Resp. ¶ 2; Petersen Am. Answer ¶18.) This vote was subsequently reported in the news media. (Petersen Am. Answer ¶ 18.)

Finally, in his role as union president, Wright has submitted and advocated numerous grievances charging Petersen with violations of the union contract. (LR 56.1 Add'l Resp. ¶ 6.) Wright has presented no details regarding the content of these grievances, aside from a spreadsheet listing fifty-eight grievances, identified only by date (ranging from 1998 through 2005) and by categories such as "Hire Back" and "Perm. Shifts." (List of Grievances, App. 1 to Wright Dep. Pt. I.)

III. Negative Reactions to Wright and His Union Advocacy

Wright has collected a number of critical comments or remarks by the Defendants, which he claims show that his union advocacy "has not sat well with Petersen." (Summ. J. Resp. at 3.)

There was an incident at a union meeting in May of 1999 involving Wright and Petersen. Petersen, as Chief of Police, was authorized to participate in the union's "fraternal end," which "is basically a fraternal or social organization," but not its "labor end," which handles negotiations, grievances, labor disputes, and unfair practices. (LR 56.1 [180] ¶ 18; LR 56.1 Resp. ¶ 18.) Wright asked Petersen to leave the meeting so that labor issues could be discussed. He and other officers contend that Petersen resisted, saying something like, "This is my police station; I'm not leaving." (Petersen Am. Answer ¶ 19; Wright Dep. Pt. III, 12/14/06, at 227:15-19; Quiroga Dep. at 19:7-12; Henniger Dep. at 131:13-15.)

Petersen admits having publicly complained about Wright. (Petersen Am. Answer ¶ 14.) Petersen posted grievances filed by Wright on the wall of his office. (LR 56.1 Add'l Resp. ¶ 9.) Officer Konwinski reported having several conversations*fn2 with Petersen during which Petersen told him that the department would run more smoothly if Wright were not union president, because Wright filed an excessive number of grievances. (Konwinski Dep. at 56:7-23.) Petersen also admits having spoken to the mayor regarding Wright at an unspecified time, observing, "maybe if there was some newer blood, there might be a change"; he explained, however, that the "change" he was referring to was the possibility of having a Christmas party again, which had not occurred since Wright had been president.*fn3 (Petersen Dep. at 30:10-33:4.)

Wright contends that Petersen "often voiced his dislike" for him. (LR 56.1 Resp. ¶ 8.) The only additional evidence he cites regarding these expressions of dislike is the testimony of Officer Jones. Jones stated that Petersen had made comments about "not liking Rob Wright" more than once, but he could not remember when or to whom Petersen made such statements. (Jones Dep. at 165:9-18.)

Wright also contends that Witz and Cascio harbored animosity towards him because of his union activities. Officer Henniger testified that Witz told him that the union was "foolish" for filing so many grievances, and that "they weren't going to win."*fn4 (Henniger Dep. at 188:14-19.) Officer Glover testified that Cascio had expressed "negativity" towards the union's officers, and Investigator Michael Jones testified that Cascio had referred to Wright as "an asshole" or "fuckin[g] Rob," and that "she didn't like him"; he attributed this dislike to issues involving shift transitions and paperwork, however,*fn5 and not to Wright's union activities. (Glover Dep. at 17:4-19; Jones Dep. at 59:10-23.)

IV. Contentions of Prior Retaliation by Petersen

Wright contends that on several occasions, Petersen treated him unfavorably with respect to job assignments in retaliation for his union activity. First, he contends that, two days after the union meeting in May 1999 that Petersen refused to leave, Petersen removed Wright from the position of Field Training Officer Supervisor, and assigned Witz to that position. (Wright Bd. Test., 4/5/2004, at 128:16-17.)

Later in 1999, Wright, who was serving as acting Watch Commander, applied for the permanent Watch Commander position. (Petersen Am. Answer ¶ 22.) Petersen abolished the permanent position, but Wright nevertheless continued to serve as an acting Watch Commander.*fn6 (Id.) At some unspecified time between 1999 and 2002, Wright demanded to be paid a stipend of $1000 for filling the acting position. (Id.) He argued that he was entitled to this, because it is what a permanent Watch Commander would have received; he admits, however, that there was no extant contractual provision giving an acting Watch Commander the right to a stipend. (Wright Dep. Pt. III, 12/14/06, at 249:18-24, 251:18-252:3.) After Wright filed a grievance about this issue, Petersen paid him the stipend, but refused to recreate the position of permanent Watch Commander so that Wright could fill it. (Id.) In December of 2002, Petersen reestablished the position of permanent Watch Commander, and gave the job to sergeant Phil Ruch, even though Wright had served as an "acting Watch Commander" for the preceding two years. (Id. ¶ 23.)

In March of 2003, Wright applied for the position of evidence technician supervisor. (Petersen Am. Answer ¶ 25.) Petersen, however, gave the position to sergeant Robert Jensen, who had less seniority and experience than Wright. (Id.)

Finally, in November of 2003, Petersen replaced Ruch with Jensen as permanent Watch Commander, despite the fact that Wright had more seniority and experience as an acting Watch Commander than Jensen.*fn7 (Petersen Am. Answer ¶ 26.) By August of 2004, Wright was once again working as an acting Watch Commander. (LR 56.1 Resp. ¶ 9.) The parties have not explained whether there were two Watch Commanders at this point-Jensen in the permanent position and Wright in the acting one-or if, at some time between November of 2003 and August of 2004, Petersen removed Jensen from the permanent position, abolished the permanent position once again, and reappointed Wright in an acting capacity.

V. The Shooting Incident

On August 20, 2004, Wright was working the overnight shift as acting Watch Commander and street supervisor. (Petersen Am. Answer ¶ 27.) At approximately 1:46 A.M., Officer Tom Henniger was on patrol when he heard gunshots near Buddy's Bar in Franklin Park. (Id. ¶ 28.) He reported the shots over the police radio, and four other policemen responded to the scene. (Id.)

Wright was at the station when the shooting was reported over the radio; he contends that he did not hear the call because his radio was turned down. (LR 56.1 Resp. ¶ 36.) Wright did not learn of the shooting until after 2:00 AM, when desk clerk Marlene Santoro informed him that there had been a shooting. (Id.; Petersen Am. Answer ¶ 30.) At that time, he was also informed by Dispatcher Ted Traister that Veteran's Park District Officer Fogg was en route to the station with a suspect from the shooting in custody. (LR 56.1 Resp. ¶ 36; Petersen Am. Answer ¶ 31.)

Rather than proceed immediately to the scene of the shooting to supervise on-site, Wright told Traister that he would remain at the station to let Officer Fogg into the building. (LR 56.1 Resp. ¶ 36; Petersen Am. Answer ¶ 32.) As he left the "records room," Wright encountered Officer Glover, who was escorting another shooting suspect into the station. (Petersen Am. Answer ¶ 33.) Although he could have asked Glover to remain at the station so that he could proceed to the scene himself, Wright instead directed Glover to return to the scene. (LR 56.1 Resp. ¶ 34.)

Wright remained at the station, monitoring the radio, watching the suspect who was at the station, and waiting for the subject in Officer Fogg's custody to arrive.(Petersen Am. Answer ¶ 35.) He was in communication with the officers at the scene, and he asked the dispatcher to call an investigator to go to the scene. (Id.) Meanwhile, the officers at the scene were searching for additional suspects. (LR 56.1 Resp. ¶ 34.) Officers Fogg and Glover subsequently arrived at the station with a second and a third shooting suspect. (Petersen Am. Answer ¶ 38.) Wright did not search these suspects before detaining them in the interview room. (Summ. J. Resp. at 7.) Officer Glover also did not search the two suspects he arrested before placing them in an interview room, though he had searched them at the time of the arrest. (Hr'g Tr. vol. III, 2/23/05, at 112, 122.)

Chief Petersen testified that he was woken at about 2:13 AM by a phone call from Dispatcher Traister regarding the shooting. (Hr'g Tr. vol. IV, at 8, 3/22/05.) He got dressed, drove to the station, directed Wright to order more officers to the scene, and arrived personally at the scene by "slightly after 2:30." (Id. at 8-10.) He did not, however, order Wright to go to the scene when he spoke with him. (Petersen Am. Answer at 37.)

Commander Witz testified that he received a phone call regarding the shooting around 2:13 that morning, and that he arrived on the scene about ten or fifteen minutes before Petersen. (Hr'g Tr. vol. III, 3/10/05, at 14.) Witz also did not order Wright to go to the scene that evening. (Witz Am. Answer ¶ 37.)

Wright finally went to the scene of the shooting at 3:15 AM, more than an hour after being notified of it. (LR 56.1 Resp. ¶ 32.) He contends that his departure was delayed, in part, because Petersen asked him to remain at the station and call in off-duty personnel, and notes that neither Petersen nor Witz ordered him to go to the scene. (LR 56.1 Resp. ¶ 36.)

VI. The Investigation of Wright and the Filing of Termination Charges

Within a few days of the shooting incident, Petersen opened an investigation into Wright's actions. (Petersen Am. Answer ¶ 40.) He ordered Witz to conduct the investigation; Cascio assisted Witz. (Id. ¶ 41.)*fn8

Ultimately, Petersen filed termination charges against Wright on December 22, 2004. (Bd. Dec. at 1; Charges, Joint Ex. 1 to Hr'g Tr.) He charged Wright with violating a number of departmental rules on the night of the shooting incident, based upon allegations that Wright (1) failed to go to the incident scene as soon as possible, (2) failed to search the suspects before detaining them in the interrogation room, (3) failed to request mutual aid from a neighboring police department so that he could proceed to the scene, (4) failed to provide medical attention for a bleeding prisoner or document the extent of that prisoner's injuries, (5) failed to supervise a show-up identification procedure involving one of the shooting suspects, (6) filed a false report regarding a radio malfunction, and (7) failed to document any such malfunction in his daily activity report. (Charges at 3-7.)

Margaret Regan, the secretary to the Board, testified that Petersen met with the Board at the time that Petersen was filing charges against Wright. (Regan Dep. at 22:20-23:1.) Although Petersen denies it, Regan testified that, at this meeting, Petersen told members of the Board that he had a "slam-dunk" case against Wright, that Wright "did not do his job," and that Wright "did not show up at the shooting." (Id. at 20:2-4.) This conversation occurred before the Board held hearings on the charges.

After disclosure of the basis of the charges, the Board conducted a trial-type adversarial hearing, hearing twelve days of sworn testimony over the course of four months. (Bd. Dec. at 1.) Wright was represented by counsel at this hearing, and he testified in his own behalf; Cascio, Witz and Petersen were among the seventeen other witnesses. (Bd. Dec. at 1-2.) On May 21, 2005, the Board issued its decision. The Board found that Wright had violated departmental rules requiring him to supervise the response to the shooting incident "at the scene," and requiring him to search prisoners before placing them in detention. (Bd. Dec. at 5-6.) It did not, however, find that Wright had broken departmental rules by failing to summon medical assistance for the prisoners, by failing to go to the scene of the show-up identification procedure, or by failing to properly report radio malfunctions. (Id. at 7.) The Board explicitly considered, and rejected, Wright's defense that the charges had been brought in retaliation for his union affiliation, concluding that Petersen's decision to file charges was not based "in whole or in part on anti-Union animus." (Id.) Finally, the Board determined that, although Wright's misconduct was severe enough to warrant termination, his "record of no prior disciplinary action" throughout his career in the department was a mitigating factor, as was his prior thirty-day suspension without pay pending the hearing. (Id. at 8-9.) Accordingly, the Board concluded that a further suspension of fifteen days without pay was a more appropriate penalty than termination. (Id. at 9-10.)

VII. The Incident Involving Officer Jones

On September 12, 2004, at approximately 1:30 A.M., Sergeant Jensen ordered Mike Jones, an on-call investigator who was not on duty at the time, to report to the scene of a shooting at Grand Stand Pizza. (LR 56.1 Add'l Resp. ¶ 62.) According to Jensen, Jones, while speaking to him on the phone that night, stated that he "hated his job and hated being an investigator," but agreed to go to the scene. (Hr'g Tr. vol. IV, at 27, 4/5/05.) Jones did not in fact go to the scene; rather, he fell back asleep after receiving the call, and did not arrive at the scene until twelve hours later. (Summ. J. Resp. at 16.) Jones testified that this failure was not intentional, but rather arose from an involuntary lapse into sleep, and Wright has not disputed this. (Jones Dep. at 105:22-106:6; LR 56.1 Resp. ¶ 155.)

Jones testified that Petersen spoke to him after the incident, and told him not to worry, because he had done nothing wrong and had done a good job. (Jones Dep. at 12:9-11.) He clarified that Petersen "wasn't commending [him]" for failing to show up on time, but rather, was explaining that his failure to appear at the scene had been harmless because a witness could not have been interviewed at that time due to intoxication. (Id. at 12:16-21.) Petersen denies telling him not to worry at this time. (LR 56.1 Add'l Resp. ¶ 66.)

Petersen did not initiate an investigation of Jones's failure to appear at the Grand Stand Pizza incident until two days after Wright made a discovery motion regarding the incident in preparation for his hearing. (LR 56.1 Add'l Resp. ¶¶ 67-69.) According to Petersen, the investigation was delayed until the public integrity unit of Cook County had completed its own investigation of Officer Jones. (LR 56.1 ¶ 151.) At the conclusion of his own investigation, Petersen imposed a one-day suspension on Jones as punishment. (LR 56.1 Resp. ¶ 147.)

Wright contends that Petersen only initiated the investigation against Jones in order to quell suspicion that he was biased against Wright. (LR 56.1 Resp. ¶ 151.) The only evidence he cites makes no mention of Petersen: Jones' testified regarding a conversation with Deputy Chief Krecker, claiming that Krecker told him that he expected to be Chief of Police soon, that he disagreed with the suspension, and that he would remove it from Jones's file. (Jones Dep. at 23:2-15.) Krecker denies this, stating that he only told Jones that he would make it possible for him to make up the hours lost due to the suspension. (Krecker Dep. at 132:5-17.)

VIII. Wright's Claims

Wright is suing Petersen, Witz, Cascio, the Board, and the Village. In this lawsuit, he asks the court to overturn the Board's decision (Count V). (Am. Compl. ¶¶ 93-96.) Additionally, he claims that, by investigating him and bringing termination charges against him, the three individual defendants retaliated against him for the exercise of his freedom of expression and association (Count I), deprived him of his right to the equal protection of the laws (Count II), and intentionally inflicted emotional distress upon him (Count IV). (Id. ¶¶ 74-84, 90-92.) He also claims that the individual defendants unlawfully conspired to deprive him of his constitutional rights (Count III). (Id. ¶¶ 85-89.) He claims that Petersen and the Board deprived him of due process of law in the hearing that led up to his fifteen-day suspension (Count VI). (Id. ¶¶ 97-104.) Finally, he claims that the Village is liable for the wrongs committed by Petersen because Petersen was a final policymaker for the Village. (Summ. J. Resp. at 18.)

DISCUSSION

The Board has requested that the court address the administrative review count before addressing Wright's other claims, in the belief that the decision, if affirmed, might have preclusive effect as to the other counts. As Wright has not opposed this request, the court will discuss the administrative review count before proceeding to the summary judgment motions.

I. Administrative Review of Count V

In Count V, Wright seeks administrative review of the Board's determination that he was guilty of misconduct, of its imposition of a fifteen-day suspension as punishment, and of its rejection of his retaliation defense. (Am. Compl. ¶ 94; Pl.'s Mem. in Support of Count V [64, "Count V Mem."], at 4, 9, 14.) He alleges that the decision was erroneous and against the manifest weight of the evidence, and also that it violated his Due Process rights.(Id. ¶ 95.) He brings this claim pursuant to the Illinois Administrative Review Law, 735 ILCS 5/3-101 et seq., invoking the court's supplementary jurisdiction.

The Administrative Review Law permits the court to affirm or reverse an administrative decision in whole or in part, or remand it for further proceedings. 735 ILCS 5/3-111(a). On review, a court treats administrative findings of fact as "prima facie true and correct," id. at 5/3-110, and does not resolve factual inconsistencies or reweigh the evidence. Launis v. Bd. of Fire and Police Comm'rs, 151 Ill. 2d 419, 427-28, 603 N.E.2d 477, 481 (1992). Rather, review is limited to determining whether findings of fact are against the manifest weight of the evidence, and if not, whether those findings supported the administrative decision. Id. at 427-28, 435, 603 N.E.2d at 484.

The Board has furnished the court with a copy of the administrative record, and all the parties have had an opportunity to submit memoranda regarding the validity of the Board's decision. Thus, this issue is ripe for decision, and as the parties have been given notice of this court's intention to resolve the issue based on the record (see Hr'g Tr., 9/14/07, at 8-11), the court will proceed as if cross-motions for summary judgment had been filed. See Int'l. Coll. of Surgeons v. City of Chicago, at *3 & n.4 (N.D. Ill. Jan. 9, 1995), rev'd on other grounds, 91 F.3d 981 (7th Cir. 1996), rev'd, 522 U.S. 156 (1997), orig. opinion aff'd, 153 F.3d 356 (7th Cir. 1998).

Wright has submitted a memorandum alleging several defects in the Board's decision. First, he argues that its findings that he violated various departmental rules were against the manifest weight of the evidence. Second, he argues that the Board erred by concluding that those rule violations warranted a fifteen-day suspension. Third, he argues that the Board's rejection of his retaliation defense was against the manifest weight of the evidence. The court will consider each argument in turn.

A. Rule Violations

1. General Order 6-3(F): Failure to Direct the Investigation On-Site

a. Determination that Wright's Absence from the Scene Violated General Order 6-3(F)

The Board found that Wright violated General Order 6-3(F) because he did not arrive at the scene of the August 20, 2004 incident until approximately ninety minutes after he was notified that a shooting had occurred. (Bd. Dec. at 3.) Wright argues that this determination reflects a misinterpretation of General Order 6-3(F). (Count V Mem. at 20.) General Order 6-3(F) requires a commanding watch officer to:

Direct the performance of his/her subordinates at all major incidents . . . and coordinate the operations of all department units at the scene ofincident ...


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