The Macomb Daily

Ex-deputy police commission­er files new lawsuit

- By Norb Franz nfranz@medianewsg­roup.com @NorbFranz on Twitter

Warren’s fired deputy police commission­er has taken new legal action against the city, Mayor Jim Fouts and the top police administra­tor.

Matthew Nichols, who was removed from the second-highest post in the Police Department after allegation­s surfaced that he used excessive force against a shopliftin­g suspect in 2018, filed a lawsuit recently in Macomb County Circuit Court against Warren, the mayor and Police Commission­er William Dwyer.

Nichols, who was appointed to deputy commission­er by Fouts in February 2017, alleges in his lawsuit that he was wrongfully terminated and that his contractua­l rights were violated. According to Nichols, Dwyer wanted the authority to appoint a deputy commission­er of his own choosing, although the power to select the city’s police commission­er, deputy commission­er and captains rests with the mayor.

According to the lawsuit and Nichols’ attorney, Dwyer threatened to not provide deposition testimony helpful to the mayor as part of a unrelated lawsuit filed by a black former Warren female officer who alleged in a civil rights lawsuit that she was the victim of sexual and racial discrimina­tion.

“Dwyer wanted control of the Police Department, and he threatened Fouts (he would not) cooperate in the black female officer’s lawsuit if he didn’t give him that (control),” Nichols’ lawyer, Jim Akhtar, told The Macomb Daily.

“He basically blackmaile­d Fouts into not adhering to the contract.”

Nichols initially sued the city and Dwyer in December 2018 in U.S. District Court, claiming he was wrongfully terminated from the department where he worked for 19 years. He asserted he was deprived of due process and contractua­l rights listed in his employment contract, and he sought damages for back pay and punitive damages for mental anguish.

Nichols claims city officials have blocked his right to arbitratio­n after he was terminated in August 2018. The fired police administra­tor sought reinstatem­ent to his job or to the rank of lieutenant that he held before Fouts appointed him as deputy commission­er.

In May 2019, lawyers representi­ng Dwyer and the city filed a motion in federal court to have Nichols’ claims dismissed. Nine months later, in February 2020, U.S. District Judge Mark A. Goldsmith threw out that portion of the case. Nichols failed to follow the grievance procedures spelled out in the labor agreements, and therefore failed to assert “a viable procedure due process claim,” the judge said in the written opinion.

Nichols has appealed that ruling to the U.S. Court of Appeals in Cincinnati.

‘Bad faith filing’

His four-count lawsuit filed in Macomb Circuit Court on April 9 alleges breach of contract; intentiona­l infliction of emotional distress; common law tortious interferen­ce with a contract or business expectancy; and a new claim of violation of third-party beneficiar­y rights.

Raechel Badalament­i, an outside attorney who handled Warren’s defense in the federal lawsuit and who is representi­ng the city in the new case, said the latter is frivolous and the claims were essentiall­y rejected by the judge in the federal ruling.

She called the new lawsuit a “bad faith filing.”

“He was rightfully discharged. He has no claim,” Badalmenti, of the Clinton Township-based law firm Kirk, Huth, Lange & Badalament­i, told The Macomb Daily. She said that during his deposition, Nichols admitted he had no evidence to support his allegation­s including the blackmail assertion but based them on “gut feeling.”

“The fact those things are included here (in the new lawsuit) in my mind is an attempt to drive media attention or get the state judge to see it as something saucy — when it’s not,” said Badalament­i, adding the city will file motions to dismiss the case and seek monetary sanctions as well.

“His conduct not only at (the) scene but during the investigat­ion was appalling.”

The case is assigned to Judge Carl Marlinga.

Investigat­ions and firing

The legal battle stems from Nichols’ alleged actions in the arrest of one of three shopliftin­g suspects and the subsequent review by Dwyer.

In July 2018, Nichols, wearing a police uniform and driving an unmarked police vehicle, was in one of several police vehicles that responded to a dispatcher’s radio report of shopliftin­g at the Menards store on Van Dyke Avenue. Three suspects were spotted a short time later at the nearby Lowe’s home improvemen­t store. Nichols, who had entered a vehicle with the three suspects inside, was heard yelling at one of the occupants. That man was pulled out from the passenger side by other officers.

Later that day or the following morning, some officers at the scene reported to a supervisor that Nichols allegedly used excessive force against one of the suspected thieves, according to police and investigat­ive records obtained by The Macomb Daily through the Freedom of Informatio­n Act.

Accounts differed from officers who converged on the scene whether one of the men reached for something while in the front passenger seat of a vehicle. At least two officers claimed Nichols used his fist to strike Karl Hermansen, age 55 at the time, in the throat. Other officers said they didn’t witness alleged excessive force, according to police reports.

In his federal lawsuit, Nichols said he had to protect himself by placing his hands on one of the defendants. After being taken into custody, the suspect complained of pain. He was taken to a hospital where he was treated for a bruise and released before he was returned to the Warren Police Department lockup.

Hermansen reported the officer who pulled him out of the vehicle unintentio­nally caused him to strike his head on the vehicle, according to Akhtar.

Nichols’ alleged actions in the police response also triggered an Internal Affairs Division investigat­ion. His initial paid administra­tive leave was changed in August 2018 to a suspension without pay.

The circumstan­ces surroundin­g Nichols’ actions were referred by the Warren Police Department to the Macomb County Sheriff’s Office to determine whether the former deputy commission­er could face criminal charges. Sheriff’s detectives interviewe­d the officers who were at Menards that day.

In a letter obtained as part of the newspaper’s FOIA request in 2019, Nichols’ first attorney, John Freeman, said in a letter to a Sheriff’s detective: “I believe that this matter stems from political infighting within the Warren Police Department. Deputy Commission­er Nichols is caught in the cross-fire between Commission­er Dwyer and anyone that does not agree with the commission­er.”

Freeman also wrote: “Any use of force by Deputy Commission­er Nichols during this incident was reasonable and proportion­ate to the situation at hand.”

Sheriff’s investigat­ors presented their findings to the Macomb County Prosecutor’s Office with a request that a warrant charging Nichols with aggravated assault — a felony offense — be issued. In December 2018, Assistant Prosecutor Dean Alan, chief of the warrants division, rejected the request and wrote: “Please handle internally.”

Eight days after the prosecutor’s decision was announced, Nichols filed the federal lawsuit. Dwyer dubbed Nichols’ lawsuit “bullying” and a tactic by Nichols and his attorney to get the Police Department to drop its internal investigat­ion.

Dwyer, who had said he was disappoint­ed by the prosecutor­s’ decision to deny a warrant, then asked the U.S. Attorney’s Office and the FBI to investigat­e Nichols’ actions toward the 55-year-old suspect.

“After (Prosecutor) Smith refused to charge, Dwyer went shopping for another agency to do the investigat­ion,” Akhtar said.

Dwyer declined to comment for this report and referred a Macomb Daily reporter to Badalament­i.

In June 2019, the police commission­er presided over a Loudermill hearing — a setting at which public employees are confronted with misconduct allegation­s. Nichols was fired a few days later.

In the terminatio­n letter to Nichols, Dwyer said: “The sum and substance of your defense is you did nothing wrong. That is disappoint­ing and inaccurate.”

Dwyer also wrote: “The severity of these charges and the underlying factual circumstan­ce clearly warrant terminatio­n of your employment. This police department simply cannot tolerate the type of actions which you have engaged in, especially given that at the time of the offenses, you held the second-highest position in the Warren Police Department. Your actions were disturbing. Your response to questions about your actions and regarding statement made during your first interview were equally disturbing.”

Mayor’s role

According to the new lawsuit, Fouts has refused to notify Nichols that he has been removed from his position as deputy commission­er. The fired police official asserts that lawyers for the city have refused to say whether Fouts authorized Dwyer to take final disciplina­ry action against Nichols. Badalament­i sent an email to Nichols’ lawyer in June 2019 stating Dwyer had the right to terminate Nichols.

Nichols has asserted in his lawsuits that only Fouts could remove him as deputy commission­er, under terms of Nichols’ employment agreement he signed following his appointmen­t to the post by the mayor in 2017.

Nichols filed for arbitratio­n in July 2019. City officials did not proceed with that process.

Akhtar told The Macomb Daily that Nichols was interviewe­d by the FBI and the U.S. Department of Justice’s local corruption unit in July 2019 regarding his involvemen­t in the arrest of the shopliftin­g suspect 12 months earlier. Neither Akhtar nor Nichols have been contacted again by federal authoritie­s, the attorney said.

“As far as we know, it’s an ongoing investigat­ion into the whole matter,” Akhtar said.

The dismissal three months ago of the federal lawsuit pleasantly surprised attorneys representi­ng the city. They said the main problem was Nichols — as an executive — had “injected” himself to the police response following the shopliftin­g at Menards instead of letting road patrol officers handle it, and that the 55-year-old suspect was not resisting arrest. Badalament­i said in February the city conducted its probe just like any other involving a police officer suspected of misconduct.

Akhtar, however, takes issue with the city administra­tion’s hiring of Badalament­i to handle the municipali­ty’s defense because she attended meetings on the misconduct allegation­s against Nichols before he was fired.

One part of the case in U.S. District Court in Detroit remains undecided. The city has a pending motion seeking monetary sanctions against Nichols, arguing that his lawsuit was frivolous.

“It’s still amazing to me that they would destroy their star police command officer for political reasons,” Akhtar said.

In the case in Macomb Circuit Court, records show Akhtar on multiple occasions sought answers from the city about Fouts’ role in the removal of Nichols as deputy commission­er. Badalament­i emphasized to Akhtar the mayor had no role in the discipline of Nichols and that Dwyer had the authority to mete discipline.

Prior to the allegation­s surroundin­g the shopliftin­g incident, Nichols had drawn praise from Fouts. Before being appointed to the No. 2 post in 2017, Nichols and the mayor drove around Warren around July 4, looking for violations of the city’s fireworks ordinance. Nichols also was an expert on crimes against seniors. But he also had other legal woes as a member of the Warren police force, including as a defendant in a police brutality lawsuit earlier in his career.

After previously serving as Warren’s top-ranking police administra­tor, Dwyer returned in August 2017 when Fouts appointed the 40-plus year police veteran again to the top post overseeing Warren’s police force of more than 200 sworn officers.

Nichols charges Dwyer informed him in January 2018 that he was being removed from all of his administra­tive duties and that he was to be locked out of the Police Department’s computer system. The 21-page lawsuit states in part: “Upon his employment with the defendant city of Warren, defendant Dwyer demanded that defendant Fouts remove plaintiff from the deputy commission­er position, in order that he could appoint his own person to the position. When Fouts refused to remove plaintiff, defendant Dwyer set on a course of conduct to remove plaintiff from most, if not all, of his administra­tive job assignment­s, which are establishe­d by department rules and regulation­s, including a chain of command.”

Also in his Circuit Court lawsuit, Nichols alleges department­al charges he had filed previously against two officers and which were pending in July 2018, were dismissed by Dwyer shortly before both patrolmen testified during the internal investigat­ion that Nichols struck the shopliftin­g suspect with a closed fist. One of those officers had been administra­tively accused by Nichols when he was still in his role as deputy commission­er of allegedly showing “a propensity” to denigrate female and black officers. The other officer was accused of spending up to three hours per day at his mother’s home in Warren rather than being on patrol.

Meantime, a third officer who was a probationa­ry hire initially reported Nichols “lightly pushed” the suspect with an open hand after the suspect refused to obey orders while being taken into custody from a vehicle in front of the Menards store. That officer later changed his story and claimed Nichols struck the man with his fist. That officer testified during a deposition that he changed his version “because he did not want to lose his job as he had a wife and family to support and he did what he had to do in order to protect his job,” the lawsuit states.

No resolution

Emails between Badalament­i and Freeman nearly two years ago indicate lawyers on both sides discussed a possible resolution. In an email dated Aug. 17, 2018,

Badalament­i told Freeman that Dwyer would agree to a potential “separation agreement” for Nichols, with proposed terms including:

• Nichols would resign voluntary because of his feelings about officers involved in the internal affairs investigat­ion.

• Badalament­i would hold off preparing written findings from the internal review.

• There was an “open” internal investigat­ion into whether Nichols violated department policy.

• Nichols and others made coerced statements under threat of terminatio­n in connection with the investigat­ion.

• No conclusion­s were reached in the internal investigat­ion because of the resignatio­n of Nichols.

• No admission by Nichols regarding the investigat­ion and a denial of any misconduct or malfeasanc­e.

• The entire original file about the internal probe would be “maintained” only by Badalament­i’s office — meaning the city would have no record of it.

Freeman followed up three days later by suggesting alternativ­es short of a resignatio­n by Nichols, such as a demotion or suspension; that he be given another internal hearing; or to incentiviz­e Nichols to resign or find a way for him to retire from the Police Department with full benefits.

“Without a sufficient financial incentive, my client is not prepared to simply resign from the Warren Police Department,” Freeman said in an email to Badalament­i.

She replied to Freeman by informing him the internal findings would be turned over to the Sheriff’s Office, and that Nichols’ administra­tive paid leave would be changed to unpaid. She also told Freeman Nichols could face a misdemeano­r charge of “official misconduct” because of his “conduct” in the investigat­ion, on top of whatever assault charge prosecutor might file.

“While we are under no obligation to advise you of this plan moving forward, I felt it appropriat­e to do so as I had sincerely hoped we could have worked something out for all involved. Sometimes we really are our own worst enemy,” Badalmenti wrote.

The two sides did not reach an accord.

Warren’s current deputy police commission­er is Robert Ahrens Jr., who was tapped by Dwyer to serve as acting police commission­er before being given the job on a permanent basis. The current salary of deputy police commission­er is $130,782, third-highest in Warren government.

Hermansen, the suspect in the Menards incident, pleaded guilty as an habitual offender to first-degree retail fraud and was sentenced in October 2018 to 320 days in jail.

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 ?? MACOMB DAILY FILE PHOTO ?? Matthew Nichols at his appointmen­t to deputy commission­er of the Warren Police Department in February 2017. Nichols is suing the city for a second time following his terminatio­n from the job.
MACOMB DAILY FILE PHOTO Matthew Nichols at his appointmen­t to deputy commission­er of the Warren Police Department in February 2017. Nichols is suing the city for a second time following his terminatio­n from the job.

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