Appeal Likely After Dismissal of Police Whistleblower Case

After announcing problems in 2010 with breath test machines used in drunk driving arrests, the District of Columbia was hit with a series of lawsuits from drunk driving defendants and from police officers who claimed they were retaliated against for blowing the whistle. The city settled the drunk driving defendants' cases last year. The police officers' suit survived a motion to dismiss, but a judge last week terminated the case— ruling in favor of the city. Litigation over the problematic breath test machines isn't over just yet, though. The plaintiffs—three police officers—plan to appeal, according to police union head Kristopher Baumann. In an August 20 opinion, District of Columbia Superior Court Judge Anthony Epstein found the plaintiffs failed to meet the standard under D.C. law for whistleblowing and hadn't presented evidence that they faced retaliation. Police officials in 2010 publicly revealed that Intoxilyzer machines used in local drunk driving arrests weren't properly calibrated, causing blood alcohol readings that were too high. The Metropolitan Police Department stopped using the machines, relying instead on urine and blood tests to measure blood alcohol levels. Last fall, the police department announced it was resuming breath testing with new machines. More than two dozen people arrested for drunk driving sued the city in U.S. District Court for the District of Columbia and in Superior Court. According to Jeffrey Rhodes of Albo & Oblon in Arlington, Va., whose firm represented 29 plaintiffs, said the city paid $136,617 to settle 17 of his cases, with the amounts ranging from $2,001 to $42,001, plus attorney fees. The other cases were dismissed or involved a confidential agreement. In the whistleblower case, three officers sued the city, individual prosecutors in the city's Office of the Attorney General and an assistant police chief. The officers also sued Attorney General Irvin Nathan and Metropolitan Police Department Chief Cathy Lanier, but they were dismissed from the case. The officers said they raised questions and concerns early on about the police department's handling of its investigation into the breath test machines. They also said they rebuffed instructions by lawyers in the attorney general's office, which prosecutes drunk driving cases, to lie in court about issues with the machines. The officers claimed they faced retaliation in the form of meritless misconduct investigations and lack of training support. In February 2012, Superior Court Judge Todd Edelman denied the bulk of the city's motion to dismiss the police officers' case. (The suit was transferred in January to Epstein.) In last week's ruling, Epstein found the officers didn't make protected disclosures under the D.C. Whistleblower Protection Act and that the evidence didn't support a finding of retaliation. He wrote that while the officers may have expressed concerns, it didn't rise to the level of whistleblowing. The judge also found that the officers weren't being asked to lie by city attorneys, but rather to not provide second-hand information about issues with the breath test machines. Epstein said the plaintiffs failed to present evidence tying their actions to any alleged retaliation and that city officials countered with "legitimate, non-retaliatory reasons." In a statement, Attorney General Irvin Nathan said Epstein's ruling was "fully justified and well deserved, particularly for the individual defendants, who should never have been sued in the first place." Police Chief Cathy Lanier said that after "a long and arduous discovery process, in which both sides expended significant resources and effort," the department was "gratified" by the decision. The plaintiffs were represented by Anthony Conti and Daniel McCartin of Conti Fenn & Lawrence in Baltimore, regular counsel for the Fraternal Order of Police. In a statement, Baumann said "this is yet another case in which employees that have been retaliated against for blowing the whistle have not been afforded any protection by the system." "This order is a reminder that one of the best enablers of public corruption and mismanagement in the District is the D.C. Superior Court," he said. According to Nathan, prosecutors have opened around 1,200 drunk driving cases and secured 366 convictions since the new breath test machines came on line last fall. "We are pleased with the way MPD's upgraded and improved breath testing program has been operating," he said in a statement.

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