Federal appeals court upholds former police commissioner’s win

The U.S. Court of Appeals has thrown out the yearsold claims of the fired Warren police deputy commissioner against the city and his former boss, although the ex-deputy commissioner is seeking a rehearing.

The Sixth Circuit Court of Appeals on March 7 dismissed all of the claims, except for one minor one, in the case of former deputy commissioner Matt Nichols against the city of Warren and William Dwyer, who was recently fired as police commissioner by Mayor Lori Stone.

Nicholas was fired by Dwyer in 2018 after being accused of assaulting a man he was arresting, and lying about it, according to the city. He sued but has lost multiple court rulings at the district and appeals court.

Attorney Raechel Badalamenti, representing the city, said in a statement Nichols will never return to the city’s employment roll.

“We are pleased to see both the state and federal courts back the City of Warren’s decision to terminate Nichols’ employment,” Badalamenti said. “Nichols’ appointed position of service was a privilege, not a right. It continues to be rewarding to work with a municipality like Warren where a hard line on police misconduct is taken, regardless of rank, 100% of the time.”

A three-judge appeals court panel rejected Nichols’ arguments for a similar reason U.S. District Judge Mark Goldsmith did: Nichols’ attorney failed to ask the court to place Nichols in a lower union-protected lieutenant post, which may give him a due process claim, but instead asked to be reinstated into the deputy commissioner post, an appointed at-will position.

“The district court … did not err in recognizing that the choice by Nichols’s counsel to pursue reinstatement to only the Deputy Commissioner position foreclosed Nichols’s procedural due process claim,” the judges say in an 11-page opinion.

The plaintiff also failed to argue breach of his employment contract with the city.

“Had Nichols brought a contract-based claim, this language would signify that Warren’s method of removing Nichols from the Deputy Commissioner position breached Nichols’ Agreement. But Nichols brought a procedural due process claim,” the judges wrote.

The appeals panel was composed of judges Karen Nelson Moore, Richard Allen Griffin and Jane Branstetter Stranch.

Nichols’ attorney, Jamil Akhtar, counters in a rehearing request filed Wednesday that Nichols is caught in a “‘Catch 22’ situation” by a prior appeals court ruling that determined he could only seek arbitration under the union contract in the lieutenant post once he was removed by the mayor, per his employment contract with the city. However, he was never actually fired because it was done by Dwyer, the commissioner, not former mayor Jim Fouts, as required under his contract with the city.

Akhtar says he only asked for Nichols to be returned to his former post because he was never legally fired.

“Nichols, therefore, adequately pled his claim that he was deprived of his due-process rights by Dwyer,” he says.

Also in support of his case, Akhtar provides a Macomb Daily article and two other media reports about Dwyer’s firing on March 7, the same day the appeals court issued the ruling. Akhtar says it shows Dwyer “was able to wrestle control” of the department from the prior mayor.

Akhtar says that is relevant because it shows Dwyer in effect “was the person who possessed the power to have the Plaintiff removed from the Deputy Commissioner position, which would trigger” Nichols’ right to be hired into the lieutenant post and thereby gain union rights.

Dwyer gained control of the department’s hiring authority in 2021, three years after Nichols left.

Akhtar also alleges Dwyer used “intimidation” or had “use of some politically sensitive information” with Fouts to gain control of the department. He suggests, based on deposition testimony of a police official, that Dwyer “threatened” that he “would not testify the way Faust (sic) wanted him to in an upcoming Racial

Discrimination Federal Jury Trial,” the Desheila Howlett case.

Lt. Stephen Mills, in response to a question that “there is talk” of that scenario in the department, testified: “I may have heard it, yes. You hear all kinds of rumors but I don’t specifically recall it. But it sounds like something like the commissioner would do.”

Dwyer told The Macomb Daily the allegation is false, and that he wasn’t with the city when most of the allegations surrounding Howlett allegedly occurred.

“I take offense to that,” he said of the allegation. “I never testified in that trial. In fact, I didn’t even take a deposition.”

Howlett, a black female, was awarded $575,000 by a federal jury in May 2023 mostly for the police department’s failure to train officers to protect against race and gender bias. The jury rejected six of eight claims and awarded less than the $14 million sought by Howlett.

In the ruling earlier this month, the appeals court also upheld the denial of Nichols’ attempt to add a retaliation claim late in the process based on the claim of learning the information late.

“Nichols knew of the requisite alleged facts to bring a retaliation claim as early as 2019,” the judges wrote. “By that time, Nichols had already asserted facts supporting (and possessed documents establishing) that shortly after filing his lawsuit, he was replaced by an acting Deputy Commissioner

and a misconduct report had triggered an FBI investigation of his conduct.

“Because these facts could have formed the basis for his retaliation claim in 2019, Nichols ‘cannot show that [his retaliation] claim . . . was unavailable prior to (2022), and thus has not shown good cause for (his) delay.”

Also, “adding a new cause of action at this late stage would prejudice Defendants,” they say.

The appeals court also denied three other claims.

In Akhtar’s favor, the panel reversed $4,750 in sanctions to be paid by Akhtar to defendant attorneys Badalamenti and Robert Carollo for an alleged frivolous destruction-of-evidence claim.

Nichols was placed on administrative leave and then fired after responding to a July 18, 2018 call to the Menards store on Van Dyke Avenue due to a larceny allegation. Following the incident, offices at the seen said Nichols had “throat chopped” a non-resisting male suspect, who requested to go to the hospital, according to Badalamenti.

Nichols denied using force during an internal investigation. The Macomb County Sheriff’s Office performed an investigation and requested an assault charge against Nichols, but the Prosecutor’s Office declined to file the charge, Badalamenti said.

The suspect that Nichols struck sued the city, which reached a settlement with him.