The New York City Police Department appeals from a summary judgment of Goettel, J., (S.D.N.Y.), ordering Commissioner McGuire to afford plaintiffs a hearing on their petition for reinstatement to the Department. Plaintiffs originally lost their jobs by operation of N.Y. Pub. Off. Law § 30(1) (e) after they were convicted of bribery. Their convictions were reversed on appeal. Plaintiffs were denied reinstatement without prior hearing, which the district court found deprived them of property and liberty without due process of law in violation of the fourteenth amendment.
Lumbard, Mansfield and Oakes, Circuit Judges. Oakes, Circuit Judge, concurring.
Robert McGuire, the police commissioner of New York City, appeals from a summary judgment in the Southern District of New York, ordering McGuire to give plaintiffs Wilma Greene and Clarence Callis a hearing on their petition for reinstatement as police officers. Greene v. McGuire, 517 F. Supp. 1330 (S.D.N.Y. 1981). Judge Goettel ruled that fourteenth amendment due process required McGuire to give plaintiffs a hearing before denying their applications, even though Greene and Callis had automatically lost their jobs by operation of law and had neither right nor reasonable expectancy of reinstatement. We reverse. Commissioner McGuire's decision not to reinstate plaintiffs deprived them of neither property nor liberty protected by the fourteenth amendment.
Both McGuire and plaintiffs moved for summary judgment after an exchange of pleadings and affidavits; there is no dispute as to the facts. Greene and Callis were appointed to the New York City police force in 1963 and 1961, respectively. They were plainclothes police officers with the 13th division in the Brooklyn North Public Morals District until May 1, 1972, when they and fourteen other members of their detail were indicted on various felony charges of bribery and conspiracy.*fn1 The officers were accused of belonging to a "pad" which turned a blind eye to illegal gambling in return for payoffs from the gamblers. Three officers who had belonged to the pad testified against their fellows; two of them placed Greene and Callis at a meeting of the pad. On October 3, 1973, all of the accused officers were convicted by a jury in Kings County. Greene, Callis and the others were dismissed from the police force on October 9, 1973, pursuant to Public Officers Law § 30(1) (e), which provides:
1. Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:
e. His conviction of a felony, or a crime involving a violation of his oath of office.
On January 9, 1978, the appellate division reversed the convictions of both Greene and Callis. People v. Cona, 60 A.D.2d 318, 328-29, 401 N.Y.S.2d 239, 245-46 (2d Dep't 1978). Their fellow officers had testified against them, and in federal court this would have been enough to support their convictions. United States v. Messina, 481 F.2d 878, 881 (2d Cir.), cert. denied, 414 U.S. 974, 38 L. Ed. 2d 217, 94 S. Ct. 286 (1973); Holmgren v. United States, 217 U.S. 509, 523-24, 54 L. Ed. 861, 30 S. Ct. 588 (1910); Davis v. United States, 411 F.2d 1126, 1128 & n.1 (5th Cir. 1969). See E. Devitt & C. Blackman, I Federal Jury Practice & Instructions § 17.06 (3d ed. 1977). In New York, however, no defendant may be convicted solely on the testimony of accomplices. N.Y. Crim. Proc. Law § 60.22(1) (McKinney 1981). Only one non-accomplice witness placed Greene and Callis at the "pad," and he failed to identify them at trial leaving only the testimony of their fellow officers against the two. The Court of Appeals affirmed on December 13, 1979. People v. Cona, 49 N.Y.2d 26, 36, 399 N.E.2d 1167, 1171, 424 N.Y.S. 2d 146, 151 (1979).
Their convictions reversed, plaintiffs sought reinstatement by writing to the Police Department in March 1980. On June 2, the Department replied with letters denying the petitions for reinstatement. It gave no reason in its letter for refusing reinstatement. The Department subsequently took the position that plaintiffs' reversal of their convictions in no way qualified them for their old jobs, because accomplice testimony would have been sufficient in departmental disciplinary hearings to justify their dismissal.*fn2 At any rate, on September 3, 1980, plaintiffs sued Commissioner McGuire under 42 U.S.C. § 1983, contending that his denial of reinstatement without prior hearing deprived them of property without due process of law in violation of the fourteenth amendment.
Judge Goettel held for plaintiffs, concluding that denial of reinstatement not only deprived plaintiffs of a property interest in their old jobs but also "stigmatized" them and thus impaired their "liberty interest" in their reputations. He conceded that Greene and Callis were not entitled to a hearing prior to their dismissal because § 30(1) (e) automatically extinguished on conviction whatever property interest they had in their jobs. He also agreed that reversal of their convictions did not entitle them to automatic reinstatement. But he reasoned that reversal nevertheless changed the situation:
The circumstances that led to the application of subsection 30(1) (e) no longer exist. It is inherently unfair to preclude even the possibility of plaintiffs' ever regaining their former positions. . . . While plaintiffs' forfeiture of office was justified upon their felony convictions, once the convictions were reversed, further deprivation can only be based on proof that plaintiffs are guilty of misconduct serious enough to bar reinstatement to their former positions. . . .
Greene v. McGuire, 517 F. Supp. 1330, 1333 (S.D.N.Y. 1981).
The due process clause is implicated only if a property or a liberty interest is affected by state action. Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577. See Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). Under the governing state law in the present case plaintiffs lost absolutely whatever tenure they had. Section 30(1) (e) provides that "Every public office becomes vacant upon the officers' conviction of a felony. A conviction of [the police officer] constitutes an abridgement of [his] office, automatically terminating its duration." Toro v. Malcolm, 44 N.Y.2d 146, 149-50, 375 N.E.2d 739, 741, 404 N.Y.S.2d 558, 561 (1978).
In Toro, a police officer had been convicted, had lost his job under § 30(1)(e), had been voluntarily reinstated and then sued for back pay. The Court of Appeals denied back pay, and in doing so made clear that reinstatement, though offered to Toro, was an act of grace and nothing more. The Court stressed that the public had ...