Las Vegas POA

Deputy Has No Claim Against Sheriff When DA Places Him On Brady List

Written on 11/06/2020
Will Aitchison

Cody Lane served as a patrol officer in the Marion County Oregon Sheriff’s Office for over ten years. On the evening of November 24, 2017, Lane worked the graveyard shift while his girlfriend celebrated her birthday at a local bar. In the early hours of November 25, 2017, Lane’s girlfriend asked Lane to follow her home as she had a malfunctioning headlight. Lane, already in the area, agreed to follow her home as they intended to spend Lane’s lunch break together. Several witnesses outside the bar observed Lane’s patrol car follow the girlfriend’s car out of the parking lot. One of the witnesses filed a report with the Sheriff’s Office.

When the Sheriff’s Office terminated Lane, in large part for alleged untruthfulness, his union challenged the termination in arbitration. An arbitrator ordered Lane reinstated, finding he had not been untruthful. Despite the Arbitrator’s finding, the Marion County District Attorney refused to remove Lane from her Brady list.

Lane sued the Sheriff’s Office, alleging it violated his rights to due process and equal protection. Lane contended that the Sheriff’s Office conducted its investigation on misrepresentations and twisted witness statements, in testifying falsely at Lane’s arbitration, and in willfully failing to make Lane whole pursuant to the Arbitrator’s order.

A federal court rejected Lane’s lawsuit. As to the due process claim, the Court found that “Lane received an abundance of process. Lane was interviewed during the internal investigation, received notice of the charges, and presented evidence at the due process hearing. Following his termination, Lane successfully arbitrated his termination and was reinstated with back pay. To the extent Lane argues that the investigation simply ‘got it wrong,’ that argument fails. The Due Process Clause of the 14th Amendment is not a guarantee against incorrect or ill-advised personnel decisions. As Lane received multiple opportunities to be heard, and ultimately succeeded in his bargained-for arbitration hearing, his procedural due process claim fails.”

The Court then turned to Lane’s substantive due process claim, which was based on the Sheriff’s Office’s determination that he was untrustworthy and his subsequent inclusion on the Brady list. The Court noted that substantive due process claims in the public employment context are limited to extreme cases, such as a government blacklist, which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from his occupation, much as if the government had yanked the license of an individual in an occupation that requires licensure.

The Court held that “as Lane is currently employed by the Sheriff’s Office, he has not been blacklisted from an occupation in law enforcement. Lane has no liberty interest in his right to a specific position, such as his former position as a patrol officer. Instead, Lane has the right to engage in his chosen occupation of law enforcement. As he is currently employed in that occupation, Lane’s substantive due process claim fails.

“Lane argues his continued placement on the Brady list is an ongoing violation of his constitutional rights. The Court disagrees. The Marion County District Attorney, and not any Defendant in this action, made an independent decision to place Lane on the Brady list. The District Attorney noted that although the Sheriff’s Department informed her of the arbitration order, it did not alter the decision to place Lane on the Brady list. Ultimately, the District Attorney stated she ‘made an independent, separate interpretation and assessment of this case in this investigation. What a third party thinks about is not relevant to my decision-making.’

“As the District Attorney made an independent analysis of Lane’s conduct, Lane’s continued placement on the Brady list cannot establish any violation of Lane’s constitutional rights by any of the Defendants named in this action.”

Lane v. Marion County, 2020 WL 5579820 (D. Or. 2020).

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