Former detective Dennis Delano (WIVB)
A legendary Buffalo detective who pursued a homicide investigation “on his own time and his own dime,” but in violation of orders, cannot sustain a civil rights claim against city officials, a Western District judge has held.
Chief Judge William Skretny (See Profile) said Dennis Delano’s tenacious pursuit of the case and his comments about it to a television reporter unquestionably involved matters of public concern that implicate First Amendment rights. But he also said Delano’s actions, even when he was off the clock, were sufficiently disruptive to the department to justify his suspension.
Delano v. Buffalo, 10-cv-922, involves a detective with what the court described as a “storied career,” the mysterious death of a teenage girl, the apparent wrongful conviction of the girl’s mother and Delano’s persistent efforts to prove that a grand jury witness with immunity got away with murder.
The story begins on Valentine’s Day 1993, when 13-year-old Crystallyn Girard was found dead in her South Buffalo home. Girard’s mother, Lynn DeJac Peters, was charged with strangling her daughter.
Peters’ former boyfriend, Dennis Donahue, who was initially a suspect, passed a polygraph and then testified before the grand jury that indicted the mother. By appearing before the grand jury, Donahue received immunity from prosecution. Peters was convicted and sentenced to a 25-year-to-life prison term.
More than a decade later, tests that were not available at the time of trial showed that male DNA was on the victim, a blood smear on her bedroom wall and on her bedding. Donahue, who was later convicted of strangling another woman, could not be excluded as the source of the DNA found on and around Girard.
After Peters’ conviction was vacated in 2008, then Erie County District Attorney Frank Clark announced that a new investigation showed that Girard had not been murdered at all, but died from an accidental cocaine overdose.
But Delano, “an erstwhile Buffalo police detective” who helped form the department’s cold case unit and generally had free rein to investigate any unsolved homicide, didn’t buy it, according to Skretny’s decision.
Delano was convinced that Donahue murdered Girard and that the “new cause of death was simply a convenient way for the district attorney’s office to dodge scrutiny over its decision to immunize Donahue by having him testify before the grand jury.”
On his own time and at his own expense, Delano traveled to Washington, D.C. to attend a forensic science convention to learn more about accidental drug overdoses with the hope of applying that information to the Girard case.
In Washington, he met a reporter for WGRZ-TV in Buffalo, Scott Brown, and consented to an on-camera interview, despite the fact that police department employees were barred from speaking to the media and top officials had specifically directed Delano to stay away from the Girard case.
Delano made clear in the interview that he was speaking for himself and not on behalf of the department.
Then he told Brown he was not convinced that Girard had died of an overdose and provided the reporter with photographs of Girard’s bedroom and a video recording of Donahue’s polygraph examination. Delano was brought up on disciplinary charges and suspended for 60 days without pay. He retired shortly thereafter.
In a civil rights action, Delano alleged that the suspension violated his free speech rights.
Skretny said “there can be no legitimate debate” that Delano was speaking of a matter of public interest.
“Delano publicly questioned the results of a high-profile murder investigation of a young girl, suggesting not only that the police department and the district attorney’s office were mistaken, or even unscrupulous, but that Gerard’s real killer remained at large,” the judge wrote. “This is plainly a matter of public concern.”
Skretny said the “closer question” was whether Delano was speaking in an individual or official capacity when he spoke to the reporter.
“Delano traveled to D.C. on his own time and at his own cost, after the official investigation of the crime had been closed by the district attorney,” he wrote. “And his comments were clearly not within his job description. Just the opposite; he was told not to speak about the case without prior approval.”
But the case turned on another of Skretny’s opinions, one in which the judge upheld the firing of an assistant Erie County district attorney for criticizing the office. In that case, which the U.S. Court of Appeals in 2013 unanimously affirmed (see Sacha v. Sedita, 12-4507-cv), Skretny found that the prosecutor’s comments were “sufficiently disruptive to justify” his termination.
Similarly, in the Delano matter, Skretny said that in the “highly charged atmosphere surrounding Girard’s death” the police department had a duty to maintain control over its employees.
“The importance of Delano’s statements and the strong public interest in them is not lost on the court,” Skretny wrote. “Whenever anyone—in particular a young girl—is found unexpectedly dead, the deceased’s family and the public have an interest and a right to see that justice is served. Delano was clearly pursuing that interest. Indeed, he is revered by many for the doggedness with which he carried out his job.”
Regardless, and “no matter the merits of his motivation,” Delano’s behavior violated direct orders and “had the potential to cause a disruption significant enough to impair ‘discipline by superiors’ and ‘harmony among co-workers,’” Skretny wrote, quoting from Rankin v. McPherson, 483 U.S. 378 (1987).
Joseph Brown, a partner at Hodgson Russ who represented the city defendants, said the ruling is consistent with Sacha v. Sedita, which he had argued. Brown noted that the Second Circuit denied en banc review of that case on Aug. 22.
“Legally, what I find most significant is it reaffirms the wide latitude that courts give to police departments to impose discipline for conduct that threatens the department’s ability to maintain discipline, morale and order,” Brown said.
Delano was represented by Jeffrey Novak and Steven Cohen of HoganWillig in Getzville, Erie County. Cohen is chair of the firm’s criminal and litigation section; Novak, an associate, said they are reviewing the decision and considering their options.
“A decision like this is disappointing because you have an officer here who was trying to do the right thing,” Novak said. “The decision has a real potential to have a chilling effect on other officers or government employees looking to correct injustices they see. The basis for the decision, that the Buffalo Police Department has an interest in maintaining cohesion and punishing disruptive personnel, is pretty broad. We are concerned that other departments will be able to use it in the future to punish others looking to do the right thing.”