United States District Court, N.D. Iowa, Western Division
ORDER ON MOTION FOR PRELIMINARY INJUNCTION
LEONARD T. STRAND, CHIEF JUDGE.
case is before me on plaintiff Bradley Wendt's motion
(Doc. No. 19) for preliminary injunction. Defendant, the City
of Denison, Iowa (the City), filed a resistance (Doc. No.
27). Wendt filed a reply (Doc. No. 30) and the City filed a
reply to Wendt's reply (Doc. No. 32). On May 3 and 4,
2017, I held an evidentiary hearing. The motion is now fully
submitted and ready for decision.
commenced this action on November 7, 2016, by filing a
two-count petition in the Iowa District Court for Crawford
County. Doc. No. 4. Wendt alleges (1) retaliation in
violation of Iowa Code § 70A.29 (the Whistleblower Act)
and (2) retaliation in violation of the First Amendment to
the United States Constitution. On November 23, 2016, the City
removed the action to this court on the basis of federal
question jurisdiction. Doc. No. 3. Wendt filed his motion for
preliminary injunction on February 15, 2017.
a former police officer for the City, contends that he was
retaliated against for actions protected by the Whistleblower
Act and for exercising his First Amendment rights.
was a police officer for the City from December 29, 2008,
until his discharge on February 14, 2017. Emswiler was the
City's Deputy Chief of Police prior to becoming Chief of
Police in April 2015. He served as Chief until June 23, 2016,
when he resigned. Dan Schaffer became Chief of Police in
Bonner was the City's Mayor from January 2014 until
December 2015 and continued to serve on the City Council
after his term as Mayor ended. Dan Leinen succeeded Bonner as
Mayor effective January 1, 2016.
worked as a police officer for the City but was discharged
before Wendt. Tony Trejo and Douglas Peters are both
Sergeants with the City's police department.
alleges retaliation for (1) Wendt's report to the Iowa
Ombudsman's Office about Emswiler allegedly illegally
entering a home (the Entry) and (2) Wendt's disclosures
to the City Council and Mayor about a directory of
inappropriate images (the Directory) that Emswiler maintained
on a police department computer. Count 2 alleges retaliation
for Wendt's exercise of his First Amendment rights.
the evidentiary hearing, Wendt, Leinen, Schaffer, Bradley,
Emswiler, Bonner, Trejo and Peters testified. Wendt submitted
Exhibits 1 through 65, including a recording of a Denison
Police Department meeting that was played during the hearing.
The City submitted Exhibits A through TT. I will discuss
relevant testimony and exhibits as it pertains to the
September 2015, Emswiler and Ohl were executing an arrest
warrant at a residence in Denison. After no one answered the
door, Emswiler used a knife to pry open a window and unlock
the door in order to enter the apartment. Ohl informed Wendt
about the incident and sent him a video of the event. The
video was sent over Snapchat, which deletes the video after
it is viewed. Ohl told Wendt that Emswiler had stated:
“It's not breaking and entering if you don't
break anything.” Wendt, allegedly believing that the
Entry was illegal, reported it to the Iowa Ombudsman's
December 8, 2015, Wendt was cited by the Iowa Department of
Natural Resources (DNR) with several infractions, the most
serious being an aggravated misdemeanor charge of
intentionally discharging a firearm in a reckless manner
causing property damage in violation of Iowa Code §
724.30(3). Initially, Wendt was placed on paid administrative
leave pending the outcome of the charges and pending an
internal investigation conducted by Emswiler. Exhibit 32.
However, after Emswiler reviewed the matter and determined
that the charges were not baseless, Wendt was placed on
unpaid administrative leave.
City now maintains that the decision to place Wendt on unpaid
leave was based on the fact that he was facing a
weapons-related charge. However, the first email message
concerning that decision did not mention this as the reason.
In a message from Emswiler to then-Mayor Bonner, Emswiler
stated that he could not “have [Wendt] arresting people
on Simple and Serious Misdemeanors and throwing them in jail
while he is under indictment for an aggravated
misdemeanor.” Exhibit 32. Similarly, Wendt contends he
was told that he was placed on unpaid status because he was
charged with an aggravated misdemeanor, not because the
charge involved a firearm. However, Bonner testified that
Wendt's unpaid status was due to the fact that he faced a
firearms charge. Leinen testified that when he became Mayor,
Bonner told him Wendt was on unpaid administrative leave
because he had a firearms charge pending.
2015, one or more police department employees located the
Directory on the police department's shared computer
server. The Directory was accessible by all police department
employees and contained various images and photographs with
text (memes), with some being of an offensive racial or
sexual nature. A review of the Directory revealed that it was
maintained by Emswiler. Indeed, it turns out that the
Directory was stored on Emswiler's own work computer,
accessible only to him, but had somehow been copied to the
shared server as well. Once the Directory was discovered on
the shared server, it was copied by someone who then provided
at least some portions of it to Wendt while Wendt was on
December 18, 2015, Emswiler directed an email message to all
police department staff in which he stated that he knew his
Directory had been accessed and copied. Emswiler further
stated that he knew who had accessed the Directory but would
give those employees an opportunity to “come
clean.” Further, Emswiler stated that if they did not
come forward, it would show “who has morals and ethics
and who probably needs to go elsewhere.” He stated that