Milwaukee Fire Prevails in Suit Brought by Terminated Firefighter

A lawsuit filed by a former Milwaukee firefighter over his termination has been dismissed by the US District Court for the Eastern District of Wisconsin. The suit was brought by Michael S. Peden, who was terminated on June 17, 2020 for conduct that reportedly took place in 2017.

Peden, who was an acting lieutenant when the events took place, was accused of subjecting a probationary subordinate to a hostile work environment. He had previously given her low marks on her monthly performance report. Upon receiving the complaint, the department initiated an internal disciplinary investigation. The subordinate later accused Peden of sexually assaulting her, resulting in him being arrested, incarcerated, and placed on suicide watch. At that point the department’s internal disciplinary investigation continued, but was limited so as not to interfere with the criminal investigation. In particular, the local assistant district attorney instructed the department not to reinterview the victim.

As the investigation continued it was revealed the victim had a relative in the police department, and one witness told investigators that she “oftentimes jokingly threatening to make ‘one call’ to get co-workers fired for no reason.” In addition, the investigation was unable to uncover any corroboration of the sexual assault.

The criminal charges against Peden were subsequently dropped, at which point the disciplinary investigation into the original harassment allegation resumed. “Some evidence” of harassment as well racist and sexist comments was found, but in the end Peden was terminated for refusing to follow orders. He filed suit against the city, county prosecutors, the victim, the victim’s police-officer family member, and several fire and police officers, alleging numerous constitutional claims, malicious prosecution, defamation and civil conspiracy.

In a lengthy opinion, the court granted summary judgment to all of the defendants on all counts, for varying reasons. One of the grounds I wanted to highlight was Peden’s allegation that his Sixth Amendment rights were violated by the city ordering firefighters not to discuss the investigation with anyone besides their union representatives. According to Peden, that order prevented him from preparing a defense. The court rejected this argument, explaining as follows (with internal quotation marks and citations removed to facilitate reading):

• The Sixth Amendment gives the accused in all criminal prosecutions the right to have compulsory process for obtaining witnesses in his favor and is essential to due process,
• To establish a violation of the right, a defendant must show more than the mere absence of a witness at trial, he also must at least make some plausible showing of how the absent witness’s testimony would have been both material and favorable to his defense.
• Herein lies the glaring hole in Peden’s Count Two claim—he does not contend that the City prohibited the witnesses’ testimony at trial.
• It is undisputed that Peden’s criminal defense counsel faced challenges accessing potential MFD witnesses due to the MFD’s ongoing internal investigation into Peden.
• After Peden was arrested for sexual assault on December 2, 2017, the Assistant District Attorney advised the MFD not to re-interview the victim regarding the sexual assault as it pertained to Peden’s criminal charges.
• The City’s counsel advised that this prohibition would put Peden’s internal investigation at a stand-still, causing it to be held open until Peden’s criminal matter concluded, as the victim was a necessary witness in the investigation.
• But Assistant Chief Washington did begin re-interviewing the witnesses (except the victim) about the sexual assault allegations.
• The MPD also interviewed MFD witnesses in April and May of 2019 in conjunction with Peden’s criminal investigation.
• The MFD, however, had a policy that during the course of its internal investigations, the interviewees were not allowed to discuss the investigation with anyone (except their union representative) while the investigation was pending.
• Peden argues that this put him into a catch-22 situation where the potential witnesses could speak to law enforcement to aid the prosecution but were prohibited from speaking to defense counsel because of the ongoing internal MFD investigation.
• Recognizing this imbalance, on June 3, 2019, Milwaukee County Circuit Court Judge Jeffrey Wagner ordered the City to have those witnesses available for defense counsel, noting that not to have them available would certainly infringe upon the due process rights of the defense while continuing the city’s interviews.
• But Peden does not dispute that when the defense asked for information throughout the criminal proceedings, the information was provided pursuant to a protective order.
• He does not assert that the City failed to comply with Judge Wagner’s June 3, 2019 order to make the witnesses available to the defense.
• Rather, Peden argues that the “wall of red-tape Mr. Peden’s defense counsel faced in attempting to access potentially favorable evidence at the outset of the criminal proceedings violated his constitutional rights and was the municipal fault of the City of Milwaukee.”
• But as long as ultimate disclosure is made before it is too late for the defendants to make use of any benefits of evidence, Due Process is satisfied
• For these reasons, Peden has not shown a violation of his Sixth Amendment right to compulsory process. Because there is no underlying constitutional violation, the City cannot be liable under Monell.
• Thus, summary judgment is granted in the City’s favor as to Count Two.

Here is a copy of the complaint: