Ex-deputy police commissioner files new lawsuit
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.