It's been a little more than a year since Anchorage police veterans Eliezer Feliciano and Alvin Kennedy started a racial discrimination lawsuit against the city of Anchorage.
The case is moving its way through the judicial system, though it may be more accurate to say it's trudging along because of predictable legal posturing and an undefined "ongoing criminal investigation" against Feliciano and Kennedy. However slow-moving the case may seem, recent court filings shed light on the allegations and the defense's strategy.
The lawsuit alleges disparate discipline for minority officers, discriminatory performance pay practices and a pattern of police profiling; it calls for more than $100,000 in damages for lost wages. Ken Legacki, the lawyer representing Feliciano and Kennedy, says the case is about more than financial restitution.
"My clients want to see some changes, to where minority officers are being recruited and hired," Legacki says. "They don't want to have cops being called apes and other hate speech like that. They want qualified minorities to be actively recruited. That's what they're pushing for."
Extraordinary claims require extraordinary evidence, and in court filings lawyers representing the city say the evidence for most of the claims is sketchy at best -- the city is also arguing that the statute of limitations has already been reached.
Of all the claims made in the lawsuit, says Anchorage's defense counsel in a court filing, Feliciano and Kennedy "attached an affidavit that alleges they attempted to file a grievance on one of the issues: performance pay. While (Anchorage) disagrees...on even this issue, the remaining claims should be barred for failure to exhaust administrative remedies, lack of jurisdiction, lack of standing and statute of limitations violations."
Discrimination claims
The officers' allegations fall into three categories:
The cited example of disparate discipline stems from a 2009 drug bust that allegedly ended with Feliciano, Kennedy and another minority detective under investigation for violating Fourth Amendment search and seizure rights of the suspect . Two white officers described by Legacki as "superior officers involved with the same bust" were congratulated "for a job well done" during the bust, according to court filings.
The issue of pay Feliciano and Kennedy raise is an alleged decision by the performance pay committee -- which they describe as "made up entirely of whites" -- to deny bonuses they deserved for training rookie detectives, even though they were the most senior offices in the police department's metro drug unit.
A few of the alleged traffic incidents involve the daughter of Leonard Torres, an APD detective of Puerto Rican descent. One night, Torres' daughter is said to have been stopped and interrogated in the Fairview area and to have had her vehicle searched without her permission or the necessary approval of a search warrant. Leonard Torres claims he was on the phone with his daughter while the drama unfolded, but when he reported the incident to his superiors he was threatened with discipline.
The most disturbing claim, if you ask Legacki, is the piece of the puzzle he says is slowing the case's progression the most. Legacki claims Feliciano and Kennedy are subjects of a retaliatory criminal investigation, of which they know few details. They don't know what they're being investigated for, or even by whom the investigation is being conducted. But for the civil case to move ahead and for the city to release all of the documents Legacki wants to present the case at trial, the criminal investigation must come to an end. It was established in the U.S. Supreme Court decision Clinton v. Jones that government is not entitled to release documents related to an ongoing criminal investigation.
"There's nothing there," says Legacki, adding that his clients had been investigated over the 2009 drug bust but nothing ever came of it. The officers' complaint adds that the investigation "has caused mental anguish, fear for their safety and fear for their livelihood."
Because of state law Dennis Wheeler, the lead attorney defending the police department, would neither confirm nor deny an ongoing criminal investigation, nor would he comment on the substance of the case.
"I'd rather the court documents speak for themselves," Wheeler says. It is, however, unlikely that the criminal investigation is imposed by the city, as Feliciano and Kennedy are both still at work, according to Anchorage police spokesman Lt. Dave Parker.
"If someone's being criminally investigated (by the city) they would usually be placed on administrative leave until it's settled," Parker says.
That could mean the investigation is in its early stages, or being conducted by another government agency, or it's just a rumor.
Legal gamesmanship?
The city's fight prevent discovery -- a pretrial procedure when the defense and plaintiffs are forced to share evidence -- could be construed as legal gamesmanship, or as an effort by the city to save money on a possibly frivolous case.
"It's a typical defense tactic: delay, delay, delay," says Dennis Maloney, an Anchorage-based lawyer who is not involved in the case. "Whatever the substance of the case may be, (the defense) can hold onto (their) money longer and wear the other side down."
Wheeler, however, says it's about the bottom line: "You don't want go through the costly process of depositions if the complaint isn't valid, so it's always our goal to get around that expense and the expense of a trial if at all possible."
Past discrimination in Anchorage Police Department
The last racial discrimination lawsuit that involved Anchorage police dragged on for four years when officers Sgt. Tyron Guillory -- who was also represented by Legacki -- and Lt. Thomas Nelson sued the city in 1996. The men said they were passed over for promotion because of their race. The city never admitted wrongdoing, but eventually settled the case by agreeing to pay each officer $75,000.
Contact Austin Baird at austin(at)alaskadispatch.com.