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Wendt v. City of Denison

United States District Court, N.D. Iowa, Western Division

June 8, 2017





         This 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.


         Wendt 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.[1] 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.


         Wendt, 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.

         The Cast.

         Wendt 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 September 2016.

         Brad 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.

         Ray Ohl 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.

         The Claims.

         Count 1 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.

         During 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 analysis below.

         The Entry.

         In 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 Office.

         Charges Against Wendt.

         On 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.

         The 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.

         The Directory.

         In late 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 administrative leave.

         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 ...

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