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By Steve Lash
The Daily Record

BALTIMORE After already losing in state court, former Baltimore Police Commissioner Kevin P. Clark suffered a defeat in federal court Wednesday when a judge dismissed his claim that then-Mayor Martin O'Malley violated his constitutional rights in firing him as the city's top cop four years ago.
In a 10-page opinion, Judge William D. Quarles Jr. of the U.S. District Court in Baltimore rejected Clark's allegations that his firing was racially motivated and that city police officers - acting at O'Malley's behest - unreasonably seized him and removed various documents and property from his office on Nov. 10, 2004, the day the mayor fired him.
Clark fared no better with his claim that O'Malley violated his due process rights in firing him, as Quarles found O'Malley was immune from suit on that basis.
O'Malley "had no reason to doubt the lawfulness of his conduct" in firing Clark until last March, when the state's highest court found the termination provisions of the commissioner's employment contract violated state law, Quarles ruled.
"As Clark's due process right was not clearly established when he was terminated, Mayor O'Malley is entitled to qualified immunity," Quarles wrote.
Clark's attorney, Neil M. Janey Sr., said Wednesday that he had not seen Quarles' opinion and therefore could not comment on it. Janey also represented Clark in the state-court litigation.
Matthew W. Nayden, a chief solicitor who represented O'Malley, Tyler and the police defendants in the federal case, welcomed the dismissal of what he called meritless allegations of civil rights violations.
Quarles correctly concluded in dismissing the case that Clark had not alleged facts that would indicate illegal activity by O'Malley, Tyler and the officers, said Nayden, who also defended the case in state court.
"We didn't think [Clark] had anything to back it up, either," Nayden said, adding that he hoped the back-to-back opinions "are closing the door on the Kevin Clark litigation. "
Quarles' decision followed Baltimore City Circuit Judge Albert J. Matricciani's ruling Tuesday that Clark is not entitled to anything more than the severance package he has already received. Clark has been paid about $75,000, or six months' salary, plus his salary for 45 days from when he was fired, and benefits.
Clark was joined in his lawsuit by two of the three former division chiefs who were fired with him, Joel Francis and Anthony Romano.
In public documents, the three men said a SWAT team of "over 50" officers was deployed to each of their offices, where the team "ransacked" their desks and files and removed documents.
But the men failed to provide any facts to support their claim of an unreasonable seizure, Quarles ruled.
"Government employers like [the Baltimore Police Department] may detain employees for non-criminal matters on a lesser showing than probable cause," the judge wrote. "The plaintiffs do not allege where they were restrained, for how long they were held, what statements were made by restraining officers, or whether they requested contact with family or counsel. That the plaintiffs were asked to surrender their weapons and badges to other BPD officers does not establish a seizure. "
Quarles also said Clark failed to allege facts sufficient to support an allegation of unconstitutional racial discrimination. Clark's argument was undercut by the fact that Romano, a white male, was also fired, the judge said.
The judge also ruled against Clark's allegation that O'Malley, then-City Solicitor Ralph Tyler and the police officers illegally conspired to deprive him of his constitutional rights.
Clark, a former New York Police Department narcotics chief, joined the Baltimore Police Department in March 2003. O'Malley fired him amid accusations of domestic abuse that were later recanted.
Clark claimed the stated reasons for his firing were a cover and that it came "at the critical stage of several sensitive investigations that were being conducted by the Baltimore Police Department," one of which, he said, could have led to charges against a city official.
In their federal lawsuit, Clark, Francis and Romano alleged police officers entered their offices; detained them; ordered them to surrender their guns, badges and identification cards; and seized documents and other property. The lawsuit was filed in November against O'Malley, Tyler and four police officers, Rodney Giacomelli, David Engel, Stephen McMahon and Carl Gutberlet.

Wire Service
 
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