No Conspiracy To Convince Miami Officer To Resign

Written on 04/16/2022
Will Aitchison

Melanie Ortiz was a Miami police detective. In December 2016, the FBI ar­rested several City employees, including one police officer and two police aides, for participating in an unlawful bribery scheme from 2013 through 2014. The City suspended three police officers in relation to the alleged bribery scheme. Ortiz was not one of the officers who were arrested nor was she relieved of her duties at any time.

However, Ortiz was summoned by Internal Affairs to provide a statement in connection with the bribery scheme. Ortiz originally thought that she was being interviewed regarding what she had observed others do when she had been assigned to patrol in Little Havana in 2013-2014. Prior to her interview, Ortiz had not been informed that she was the subject of an investigation in connection to the bribery scheme.

Ortiz arrived at the interview with an unidentified representative from the Fraternal Order of Police. The IA sergeant asked to speak privately with the representative. Upon their return to the interview room the representative advised Ortiz that he could no longer represent her, and that the sergeant had recommended that Javier Ortiz, presi­dent of the FOP, represent her.

Ortiz returned to Internal Affairs on December 16, 2021, at which time Javier Ortiz acted as her representative. During the meeting, Javier Ortiz stated that Ortiz could not review her file de­spite her requesting to do so, and that “her only option to avoid going to jail – and having her daughter learn about her arrest through the media – would be to immediately and irrevocably re­sign.” Javier Ortiz also stated that Ortiz could not have a lawyer from the FOP represent her. Ultimately, Ortiz signed an irrevocable resignation and waiver of rights memo.

Ortiz sued the City and the FOP, al­leging that the conduct of both breached her due process rights by “coercing” her to resign. A federal court dismissed the lawsuit.

The main question for the Court was whether Ortiz sufficiently alleged that the FOP and the City conspired to deprive her of her rights, in violation of Section 1983 of the Civil Rights Act. The Court ruled that “generally, the FOP is a national labor organization, with union locals in various states. To maintain a cause of action under § 1983, the defendant must be clothed with the authority of state law for its conduct to constitute state action. Pri­vate entities, like the FOP, are generally not state actors and therefore do not act under color of law. Notwithstanding, acting in conspiracy with a state actor may extend liability under § 1983 to a non-state actor.

“It is not apparent that there is a nexus between the City, Javier Ortiz, and the FOP. Critically, the operative complaint does not allege that the ser­geant and Javier Ortiz communicated at any point during the relevant time period, much less that they reached an understanding. Indeed, as alleged, Javier Ortiz was not present at the time Ortiz was initially summoned to the IA Office. He was only present on December 16, when he (and he alone) forced Ortiz to resign.

“Ortiz asks the Court to infer that because Sanchez recommended Javier Ortiz be the representative at the interview, that the two reached an understanding to deprive Ortiz of her due process rights. However, without more, the Court cannot reach that conclusion. Additionally, the City’s acceptance of the resignation memoran­dum, alone, is insufficient to show that it was aware or should have been aware of any wrongdoing. For these reasons, the Court finds that Javier Ortiz and the FOP were not acting under state color and thus the complaint must be dismissed.”

Ortiz v. City of Miami, 2021 WL 5759700 (S.D. Fla. 2021).

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