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The refusal of police to adhere to the “blue wall of silence” and ignore a fellow officer’s misconduct is no basis for a selective enforcement claim under the Equal Protection Clause, according to a federal appeals court. The 2nd U.S. Circuit Court of Appeals reversed a lower court’s award of $200,000 to ostracized state trooper Dennis J. Diesel, who, after being labeled as “rat” by fellow state troopers for cooperating in an internal affairs investigation, was punished for an unrelated incident. The court found that Diesel failed to prove retaliatory harassment because the alleged retaliation was a “reasonable response to Diesel’s own culpable conduct.” He had been found passed out and bleeding behind the wheel of a state police vehicle while he was assigned as a security officer and driver for then-Lieutenant Governor Betsy McCaughey Ross. “Civil damages are not available by reason of a police officer’s refusal to turn a preferentially blind eye toward another’s serious infraction,” said Judge Dennis G. Jacobs, writing for the court. The events that prompted Diesel v. Town of Lewisboro, 99-7831, began in 1994, with a state police investigation into whether troopers in the Peekskill barracks had covered up a hit-and-run incident involving the brother of a state trooper. In 1995, Diesel gave information to investigators, who ultimately won a guilty verdict against one of the officers. Diesel claimed his cooperation made him an “outcast” in the department and the subject of harassment that continued up to and beyond November 1995, when he was temporarily promoted to the rank of investigator, assigned to the Executive Services Detail and given the task of protecting Ross. On Feb. 2, 1996, after dropping Ross at her Manhattan residence, Diesel headed north to dine with friends at a restaurant in Lewisboro, N.Y. Conflicting testimony has Diesel drinking either a small amount or a great deal of wine before suffering a fall in the men’s room that bloodied his nose. Diesel left the restaurant for home between 2 and 3 a.m. and drove through heavy snowfall until he decided to pull his state car to the side of road. His face still bloodied, he fell asleep with the engine running and was awakened about six to seven hours later by state police, some of whom claimed that Diesel appeared to be intoxicated and admitted to being in a fight. Although never arrested or charged criminally, Diesel received a letter of censure, was removed from the executive detail and reassigned. He claimed that his treatment throughout the investigation, including his detention during questioning, was motivated by the so-called “Peekskill incident.” CIVIL RIGHTS ACTION Diesel filed a civil rights action in the U.S. District Court for the Southern District of New York, winning an award of $1.5 million that the district court later found to be excessive. Diesel ultimately accepted a remittitur of $200,000 offered by Magistrate Judge Mark D. Fox. Three of the defendant troopers sued by Diesel appealed the district court’s refusal to grant, in full, their motion for judgment as a matter of law. The 2nd Circuit’s holding, Judge Jacobs said, was that “a selective claim under the Equal Protection Clause of the Fourteenth Amendment cannot rest on the allegation that police officers refused to close their eyes to another officer’s serious misconduct in accordance with the tradition of the ‘blue wall of silence.’ “ Jacobs also found that the investigation into Diesel’s conduct was “reasonable as a matter of law both in its initiation and scope,” and that, as a matter of law, Diesel was not entitled to damages. “Put bluntly, Diesel complains that he was entitled to the benefits of what he calls the blue wall of silence, behind which he expected his fellow officers to cover up his misconduct as he alleges is done for other officers who get in trouble,” Jacobs said. “Essentially he claims that he was entitled to have his misconduct ignored or concealed.” Despite the fact that his asserted constitutional injury included “ostracism, the alienation of friendships and the withholding of preferential treatment by fellow officers,” Jacobs said, “the law is ineffective to compel friendship or courtesy.” Finding that the lower court’s “only error was to award nominal damages for the censure and reassignment,” the 2nd Circuit reversed, finding that there were proper, non-retaliatory reasons for Diesel’s punishment. “Diesel’s conduct as a whole would foreseeably bring discredit and embarrassment to the State Police and the Lieutenant Governor, and clearly warranted some measure of censure or punishment,” he said. Judges Pierre N. Leval and Robert D. Sack joined in the opinion. Assistant Solicitors General David Lawrence III, Mark Gimpel and Mary Lynn Nicolas, and Deputy Solicitor General Edward Johnson, represented the defendants. Marc Rowin, of New York-based Lynch Rowin, represented Diesel.

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