Greensboro police officers Scott Sanders and Tom Fox have filed suit against the city of Greensboro and a host of former and current employees, including former City Manager Mitchell Johnson and former Chief Tim Bellamy in Forsyth County Superior Court.
The officers, who were part of a special intelligence section under former Chief David Wray that was accused of racially motivated investigations of black officers, claims malicious prosecution, abuse of process and civil conspiracy. A federal judge threw out a similar lawsuit last August.
The lawsuit argues that Forsyth County Superior Court is the proper venue for the complaint to be heard “as several parties reside or have their principal place of business in Guilford or Forsyth counties and the events underlying this lawsuit occurred in Guilford County.”
The complaint lists only one of the parties, Greensboro police Officer Norman O. Rankin, as being a resident of Forsyth County. All the other defendants, including retired Assistant Chief Gary Hastings, retired Capt. Martha Kelly, Officer Ernest L. Cuthbertson and Officer John D. Slone, are referenced as residents of Guilford County. The city of Greensboro is located in Guilford County.
The more recent lawsuit was filed last month. Sanders and Fox are represented by John Vermitsky, who also represented them in the federal case, and Michael P. Crowe. Vermitsky and Crowe work out of law offices in Winston-Salem.
The city of Greensboro is also defending lawsuits brought by 39 black officers, Capt. James Hinson, Officer Julius Fulmore and Wray himself.
Sanders and Fox alleges that in June 2005, Rankin, a black officer assigned to special intelligence approached the city legal department and began giving false statements about Fox and Sanders, and that Johnson as city manager directed an “improper investigation” into special intelligence, specifically targeting Fox and Sanders.
The complaint alleges that all defendants provided “misleading, incomplete and/or inaccurate information” about Sanders and Fox to the State Bureau of Investigation. The two were indicted in 2007, and Sanders stood trial in Guilford County Court in 2009. A jury found Sanders not guilty of accessing a government computer without authorization, and shortly afterwards a state special prosecutor dropped all charges against the two.
The complaint filed by the two officers alleges that “after Sanders was found not guilty, a newly promoted officer of the police department provided the SBI with statements that had been suppressed by the defendants that led to all remaining charges against Scott Sanders and Tom Fox being dismissed by the SBI.”
US District Judge Thomas D. Schroeder addressed claims that the defendants mislead the State Bureau of Investigation or withheld exculpatory investigation in an opinion released when he threw out the previous suit.
“The amended complaint does not explain the significance of these alleged actions, however, much less how they affected the grand jury proceeding or could have caused the grand jury to find probable cause where none allegedly existed,” Schroeder said at the time.
Showing posts with label Tom Fox. Show all posts
Showing posts with label Tom Fox. Show all posts
Arguments of law in the civil matter of alleged violations of the civil rights of Sgt. Tom Fox and Officer Scott Sanders
Federal civil rights complaint filed by Sgt. Tom Fox and Officer Scott Sanders against the city of Greensboro, Chief Tim Bellamy, former Assistant Chief Gary Hastings, Officer John D. Sloan, Officer Ernest L. Cuthbertson, former City Manager Mitchell Johnson, former Capt. Martha Kelly and Risk Management Associates: “Mitchell Johnson, in his official capacity, and the city of Greensboro have discriminated against Scott Sanders and Tom Fox based on their race (Caucasian) and have deprived Scott Sanders and Tom Fox of their right to make and enforce contracts guaranteed by the Civil Rights Act of 1866, 42 USC § 1981 for, among other things, the purpose of appeasing a segment of the African-American community and discrediting and discharging David Wray’s ‘good ole boys.’ Mitchell Johnson, unjustifiably and without good cause, took actions adverse to Scott Sanders and Tom Fox, communicated inaccurate information, and directed investigations to justify discrediting, suspending the plaintiffs for more than one year without pay, and caused unfounded criminal charges to be brought against Scott Sanders and Tom Fox.”
Mitchell Johnson’s motion to dismiss, June 10: “Plaintiffs’ § 1981 claims against Johnson should also be dismissed for failure to plead racial discrimination. Instead of pleading racial discrimination, plaintiffs have pled that Johnson had them wrongfully arrested to appease an unidentified segment of the African-American community. However, plaintiffs do not claim that this unspecified group of people harbored any racial animus. Thus, instead of pleading that they were wronged because they were Caucasian, plantiffs have instead pled that Johnson responded to perceived wrongdoings by the Greensboro Police Department and sought to appease an unidentified segment of the community that plaintiffs do not allege any racial animus.”
Complaint: “With the forced resignation of David Wray, the Federal Bureau of Investigation on January 12, 2006, mounted an investigation into charges of alleged violations of federal civil rights by David Wray and members of [the special intelligence section], including Scott Sanders and Tom Fox. The FBI found no evidence of any violations of federal law by SIS, Scott Sanders, Tom Fox or David Wray.
“After the FBI found no basis for adverse action against Scott Sanders and/or Tom Fox, at the direction of Timothy Bellamy, the city requested that the State Bureau of Investigation (SBI) investigate Scott Sanders, Tom Fox and SIS.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs claim that Bellamy requested that the SBI investigate them after the FBI found no evidence that plaintiffs violated federal law. But plaintiffs make no allegations about whether Bellamy requested the SBI to investigate the same federal law the FBI had already covered or potential state law violations that the FBI had not covered.”
Complaint: “Upon information and belief, although Mitchell Johnson knew or had reason to know that an investigation by the SBI was unfounded he backed Bellamy in initiating an SBI investigation into SIS through his conduct, including inter alia:
“a. Giving the City Legal and RMA reports to Bellamy to read with the instructions to Bellamy to see if the issues in the report were true and accurate and to report back to Johnson and tell him what he was going to do about it.
“b. By directing Bellamy, after he came back to Johnson and reported that the issues were true, to request and start an SBI investigation.
“At the request of Mitchell Johnson and several members of the Greensboro Police Department, including Timothy R. Bellamy and Gary W. Hastings, SBI conducted an investigation and interviewed numerous Greensboro Police officers including Timothy R. Bellamy, Gary W. Hastings, John D. Sloan and Ernest L. Cuthbertson.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly: “Plaintiffs allege that Bellamy and Hastings, along with Johnson and ‘several members of the Greensboro Police Department’ requested that the SBI interview police officers. Not only does this collective allegation fail to explain why such a request was unwarranted, plaintiffs fail to explain how the information the SBI gained from the interviews caused it to bring criminal charges.”
Complaint: “During this investigation, Captain Martha Kelly conspired and agreed with defendants Hastings and Bellamy to deprive the plaintiffs of their constitutionally protected rights and to maliciously and without probable cause, initiate and continue criminal charges against the plaintiffs. During this time period, Ms. Kelly withdrew evidence at the specific request of Hastings which was destroyed and which pertained to the criminal investigation of the plaintiffs and which, upon information and belief, had been created by Hastings and titled ‘Memorandum #9.’"
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs allege that Bellamy, Hastings and Kelly conspired to initiate criminal charges against them. In support of this legal conclusion, plaintiffs allege that Kelly destroyed a document that had been created by Hastings titled ‘Memorandum #9.’ Although plaintiffs allege that Memorandum #9 ‘pertained to the criminal investigation’ they do not allege what information this document contained or whether it would have prevented the SBI from bringing criminal charges against plaintiffs.
Complaint: "Additionally, during this time in furtherance of her illegal agreement Kelly failed to notify the SBI of false criminal and administrative allegations brought forth by Gary Hastings which concerned plaintiff Sanders.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs also claim that Kelly failed to inform the SBI about false criminal and administrative allegations Hastings had brought against plaintiffs. However, plaintiffs fail to specify what these criminal and administrative allegations concerned, whether they covered the scope of the SBI’s investigation, or whether they would have prevented the SBI from bringing charges against them."
Complaint: “During the SBI’s investigation into SIS, Hastings was in command of the Special Investigation Division which included SIS.
“Upon information and belief, Hastings had a personal vendetta against David Wray stemming from disciplinary actions David Wray had previously imposed on Hastings. Hastings’ vendetta extended beyond Wray to include members of SIS that Hastings perceived as Wray’s ‘good ole boys’ including Scott Sanders and Tom Fox."
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: "Plaintiffs note that Bellamy [SIC] was in charge of SIS during the SBI's investigation and claim that Bellamy had a personal vendetta against Wray that extended to plaintiffs. But plaintiffs fail to allege how Bellamy used his power over the SIS or directed his personal vendetta to have criminal charges brought against plaintiffs."
“Upon information and belief, Bellamy, Hastings, Sloan and Cuthbertson provided the SBI with false, incomplete, and/or misleading statements and information in an attempt to discredit and bring charges against Scott Sanders and Tom Fox.
“On May 31, 2007, Julius Fulmore, an African-American police officer employed by the city of Greensboro, filed suit in Guilford County Superior Court against Scott Sanders and others…
“Without probable cause and as a result of the false, malicious and misleading evidence presented to the SBI by the defendants, Tom Fox was indicted on one count of felonious obstruction of justice and one count of felonious conspiracy. Based on the same information and without probable cause, Scott Sanders was indicted on one count of accessing a government computer, two counts of felonious obstruction of justice, and one count of felonious conspiracy. These charges were based solely on the investigation by SBI that included false, incomplete and misleading information provided by defendants Bellamy, Hastings, Johnson, Sloan and Cuthbertson in their official capacities.”
Fox and Sanders were acquitted of all charges by a Guilford County jury in February 2009.
Brief in support of Johnson’s motion to dismiss: “Plaintiffs allege that their indictments were ‘based solely on the investigation by the SBI that included false, incomplete and misleading information by defendants Bellamy, Hastings, Johnson, Sloan and Cuthbertson in their official capacities.’ These allegations say nothing about what information Johnson provided the SBI or whether the information was false, misleading or incomplete. In fact, plaintiffs do not even allege that the SBI interviewed Johnson but rather that he backed the initiation of an SBI investigation. Absent allegations of what information Johnson provided the SBI, it would be pure speculation to conclude that Johnson caused the SBI to indict plaintiffs.”
The Johnson brief is referenced by Sloan and Cuthbertson as a response to allegations by the plaintiffs that "provided the SBI with false, incomplete, and/or misleading statements and information in an attempt to discredit and bring charges against Scott Sanders and Tom Fox."
Mitchell Johnson’s motion to dismiss, June 10: “Plaintiffs’ § 1981 claims against Johnson should also be dismissed for failure to plead racial discrimination. Instead of pleading racial discrimination, plaintiffs have pled that Johnson had them wrongfully arrested to appease an unidentified segment of the African-American community. However, plaintiffs do not claim that this unspecified group of people harbored any racial animus. Thus, instead of pleading that they were wronged because they were Caucasian, plantiffs have instead pled that Johnson responded to perceived wrongdoings by the Greensboro Police Department and sought to appease an unidentified segment of the community that plaintiffs do not allege any racial animus.”
Complaint: “With the forced resignation of David Wray, the Federal Bureau of Investigation on January 12, 2006, mounted an investigation into charges of alleged violations of federal civil rights by David Wray and members of [the special intelligence section], including Scott Sanders and Tom Fox. The FBI found no evidence of any violations of federal law by SIS, Scott Sanders, Tom Fox or David Wray.
“After the FBI found no basis for adverse action against Scott Sanders and/or Tom Fox, at the direction of Timothy Bellamy, the city requested that the State Bureau of Investigation (SBI) investigate Scott Sanders, Tom Fox and SIS.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs claim that Bellamy requested that the SBI investigate them after the FBI found no evidence that plaintiffs violated federal law. But plaintiffs make no allegations about whether Bellamy requested the SBI to investigate the same federal law the FBI had already covered or potential state law violations that the FBI had not covered.”
Complaint: “Upon information and belief, although Mitchell Johnson knew or had reason to know that an investigation by the SBI was unfounded he backed Bellamy in initiating an SBI investigation into SIS through his conduct, including inter alia:
“a. Giving the City Legal and RMA reports to Bellamy to read with the instructions to Bellamy to see if the issues in the report were true and accurate and to report back to Johnson and tell him what he was going to do about it.
“b. By directing Bellamy, after he came back to Johnson and reported that the issues were true, to request and start an SBI investigation.
“At the request of Mitchell Johnson and several members of the Greensboro Police Department, including Timothy R. Bellamy and Gary W. Hastings, SBI conducted an investigation and interviewed numerous Greensboro Police officers including Timothy R. Bellamy, Gary W. Hastings, John D. Sloan and Ernest L. Cuthbertson.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly: “Plaintiffs allege that Bellamy and Hastings, along with Johnson and ‘several members of the Greensboro Police Department’ requested that the SBI interview police officers. Not only does this collective allegation fail to explain why such a request was unwarranted, plaintiffs fail to explain how the information the SBI gained from the interviews caused it to bring criminal charges.”
Complaint: “During this investigation, Captain Martha Kelly conspired and agreed with defendants Hastings and Bellamy to deprive the plaintiffs of their constitutionally protected rights and to maliciously and without probable cause, initiate and continue criminal charges against the plaintiffs. During this time period, Ms. Kelly withdrew evidence at the specific request of Hastings which was destroyed and which pertained to the criminal investigation of the plaintiffs and which, upon information and belief, had been created by Hastings and titled ‘Memorandum #9.’"
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs allege that Bellamy, Hastings and Kelly conspired to initiate criminal charges against them. In support of this legal conclusion, plaintiffs allege that Kelly destroyed a document that had been created by Hastings titled ‘Memorandum #9.’ Although plaintiffs allege that Memorandum #9 ‘pertained to the criminal investigation’ they do not allege what information this document contained or whether it would have prevented the SBI from bringing criminal charges against plaintiffs.
Complaint: "Additionally, during this time in furtherance of her illegal agreement Kelly failed to notify the SBI of false criminal and administrative allegations brought forth by Gary Hastings which concerned plaintiff Sanders.”
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: “Plaintiffs also claim that Kelly failed to inform the SBI about false criminal and administrative allegations Hastings had brought against plaintiffs. However, plaintiffs fail to specify what these criminal and administrative allegations concerned, whether they covered the scope of the SBI’s investigation, or whether they would have prevented the SBI from bringing charges against them."
Complaint: “During the SBI’s investigation into SIS, Hastings was in command of the Special Investigation Division which included SIS.
“Upon information and belief, Hastings had a personal vendetta against David Wray stemming from disciplinary actions David Wray had previously imposed on Hastings. Hastings’ vendetta extended beyond Wray to include members of SIS that Hastings perceived as Wray’s ‘good ole boys’ including Scott Sanders and Tom Fox."
Brief in support of motion to dismiss by Bellamy, Hastings and Kelly, June 10: "Plaintiffs note that Bellamy [SIC] was in charge of SIS during the SBI's investigation and claim that Bellamy had a personal vendetta against Wray that extended to plaintiffs. But plaintiffs fail to allege how Bellamy used his power over the SIS or directed his personal vendetta to have criminal charges brought against plaintiffs."
“Upon information and belief, Bellamy, Hastings, Sloan and Cuthbertson provided the SBI with false, incomplete, and/or misleading statements and information in an attempt to discredit and bring charges against Scott Sanders and Tom Fox.
“On May 31, 2007, Julius Fulmore, an African-American police officer employed by the city of Greensboro, filed suit in Guilford County Superior Court against Scott Sanders and others…
“Without probable cause and as a result of the false, malicious and misleading evidence presented to the SBI by the defendants, Tom Fox was indicted on one count of felonious obstruction of justice and one count of felonious conspiracy. Based on the same information and without probable cause, Scott Sanders was indicted on one count of accessing a government computer, two counts of felonious obstruction of justice, and one count of felonious conspiracy. These charges were based solely on the investigation by SBI that included false, incomplete and misleading information provided by defendants Bellamy, Hastings, Johnson, Sloan and Cuthbertson in their official capacities.”
Fox and Sanders were acquitted of all charges by a Guilford County jury in February 2009.
Brief in support of Johnson’s motion to dismiss: “Plaintiffs allege that their indictments were ‘based solely on the investigation by the SBI that included false, incomplete and misleading information by defendants Bellamy, Hastings, Johnson, Sloan and Cuthbertson in their official capacities.’ These allegations say nothing about what information Johnson provided the SBI or whether the information was false, misleading or incomplete. In fact, plaintiffs do not even allege that the SBI interviewed Johnson but rather that he backed the initiation of an SBI investigation. Absent allegations of what information Johnson provided the SBI, it would be pure speculation to conclude that Johnson caused the SBI to indict plaintiffs.”
The Johnson brief is referenced by Sloan and Cuthbertson as a response to allegations by the plaintiffs that "provided the SBI with false, incomplete, and/or misleading statements and information in an attempt to discredit and bring charges against Scott Sanders and Tom Fox."
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