Lawsuit: Va. LEO 'in name only' wants to be reinstated as sworn officer

Daniel Smith can't carry a badge or gun despite still being employed on the force, wasn't given 'due process' in disciplinary process


Scott Daugherty
The Virginian-Pilot

CHESAPEAKE, Va. — Daniel Smith is a veteran cop.

But following a disagreement in 2015 with Chesapeake police brass, he’s found himself in a sort of limbo. The former sergeant with 23 years on the department can still call himself a police officer, but he can’t carry a badge, he can’t carry a gun and he can’t wear a uniform, according to court documents.

When an intoxicated — and potentially dangerous — felon walked into the police station earlier this year to turn himself in on a warrant, Smith didn’t think he could even make the arrest. The guy got away.

“Smith is a police officer with the department in name only,” his attorney, Andrew Meyer, wrote in court documents. He noted his client — who holds the rank of senior police officer and was making almost $65,000 a year in 2018, according to a database obtained by The Virginian-Pilot — “lacks any of the authority bestowed to a sworn law enforcement officer.”

Through a city official, Chief Kelvin Wright declined to comment on Smith, his failed attempt to fire him in 2015 and the nearly five years the officer has spent on “restricted duty” after winning a grievance hearing.

City Attorney Jacob Stroman also declined to comment, citing an ongoing legal battle, which has snaked its way through the state courts and has now found its way to U.S. District Court in Norfolk.

Smith asked a federal judge last month to reinstate him as a sworn law enforcement officer. In his lawsuit — which also seeks $1.5 million in damages, plus attorneys fees and interest — he argues Wright denied him his constitutional rights to due process.

Smith’s lawyer, Meyer, declined to comment.

Smith’s problems with Wright started in 2014, according to court documents.

That year, the chief ordered his staff to launch a criminal and administrative investigation into Smith’s handling of “timekeeping records.” The following January, Wright moved to terminate the sergeant’s employment, the lawsuit said. Smith was required to turn over his badge, firearm and uniform.

Smith challenged the firing, but before a grievance hearing could occur, Wright directed his detectives to disclose portions of their investigation to Chesapeake Commonwealth’s Attorney Nancy Parr, the lawsuit said.

Parr then issued a so-called “Brady Letter” calling into question Smith’s truthfulness. The letter, which her staff must turn over to defense attorneys if he was ever to be called as a witness, effectively meant Smith would never take the stand again.

Smith said the letter was based on “incomplete and misleading information.” He noted he was never charged with a crime and that the administrative investigation uncovered evidence he did not commit one, the lawsuit said.

After a four-day grievance hearing, the panel unanimously overturned Smith’s termination in August 2015. While concluding there was inadequate proof Smith was untruthful, it ordered him reinstated as an officer rather a sergeant. He also wasn’t allowed any back pay.

The finding was supposed to be “final and binding," the lawsuit said, unless either side notified the city's human-resources director within five days they wanted to challenge it

That did not happen, the lawsuit said.

By Smith’s reading of the determination, the chief should have reissued him a badge, firearm and uniform.

Instead, Wright placed Smith on “restricted duty,” saying that because Parr had determined he couldn’t be called as a witness, having him on the street could jeopardize prosecutions. The chief told Smith he would serve as a “midnight shift desk officer” until further notice.

In January 2017, Smith asked the Chesapeake Circuit Court to reinstate him as a sworn officer. During a hearing that June, both Parr and Wright testified.

Parr said she ordered her staff to stop using Smith as a witness “based solely on information provided” to her by the police department, the lawsuit said. She said the department never provided her with any favorable information about Smith, and that she could rescind the “Brady Letter” if police brought her new facts that cleared him of wrongdoing.

Wright said he disagreed with the findings of the grievance panel and, after reviewing the evidence it heard, determined it was not proper to reinstate Smith as a police officer, the lawsuit said.

Chesapeake Circuit Judge Randall Smith denied Smith’s petition, finding it would be “unreasonable to issue (Smith) a badge and firearm and to allow him to ... make arrests if the Commonwealth would not pursue those charges in court.”

The Supreme Court of Virginia refused to hear Smith’s appeal.

Today, Smith is the only Chesapeake officer not issued a badge or a gun, the lawsuit said. He is also the only one “whose schedule and compensation is based upon a civilian forty-hour work week cycle.”

There are no written policies governing Smith’s “restricted duty” status, the lawsuit said.

In a December 2015 email obtained by The Pilot, Smith said his unique status has forced him to endure “the humiliation of being an officer without a gun and badge.”

The lawsuit alleges Wright’s actions put Smith and the citizens of Chesapeake in danger, saying Smith is forced to mislead people on a daily basis. When he tells them he is a police officer, the lawsuit said, they assume that means he has the authority of a sworn officer.

The suit notes two incidents in August and September in which Smith was alone working his assigned duty station — the police department’s front desk.

The first involved an “intoxicated, wanted felon, known to be armed and dangerous,” who entered the building and asked about turning himself in to police. The suit said that because Smith lacked the authority of a sworn police officer, he couldn’t arrest the man, who left and remained at large for about two more days.

The second occurred when a woman approached the front desk to inquire about obtaining a protective order. She told Smith she had just been involved in an incident of domestic violence involving a firearm, and that the assailant might have followed her to the police station.

“The complainant advised Smith she felt safe in the building because Smith was a police officer. Smith was unable to act upon the complaint or protect the complainant because he lacked the ability or authority,” the suit said.

During the grievance hearing, Wright testified Smith was eligible for promotion. Over the years, however, the chief has repeatedly urged the city’s human resources department to not consider Smith for sergeant.

"His conduct was so egregious that I determined not to give him a gun or badge of authority. We do not have any supervisory positions that would not require him to exercise police authority, therefore I would like to select the next candidate,” Wright wrote in an October 2017 memo, according to the lawsuit.

The next month, Wright promoted Smith to “senior police officer.” The lawsuit said the designation was designed to prevent Smith from becoming a sergeant again.

McClatchy-Tribune News Service
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