James Nance v. City of Newark, New Jersey

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-4741
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JAMES NANCE,
Appellant
v.
CITY OF NEWARK, NEW JERSEY; NEWARK POLICE DEPARTMENT; CITY
COUNCIL OF THE CITY OF NEWARK; JAMES SHARPE; JOSEPH J. SANTIAGO;
THOMAS C. O’REILLY; RAYMOND GOLDEN
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On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 99-cv-03151)
District Judge: Honorable William H. Walls
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Submitted Under Third Circuit LAR 34.1(a)
February 8, 2005
Before: BARRY, FUENTES and BECKER, Circuit Judges
(Filed: February 14, 2005)
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OPINION
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BECKER, Circuit Judge.

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This is an appeal by James Nance from the District Court’s grant of summary
judgment against him in his 42 U.S.C. § 1983 claim against the city of Newark and its
Police Department, and various other municipal defendants. For the reasons that follow,
we affirm. Because the parties are fully familiar with the background facts and
procedural history we need not set them forth in detail, and limit our discussion largely to
our ratio decidendi.
Nance was employed by the city as a special law enforcement officer (SLEO). As
the result of an incident occurring on February 27, 1998, at the Kentucky Fried Chicken
restaurant where he was assigned, Nance was charged with violation of Police
Department rules and regulations pertaining to the firing of warning shots and of keeping
a service revolver fully loaded. Administrative proceedings ensued, which were
scheduled and rescheduled; Nance maintains that he did not receive proper notice of the
proceedings. Nance was suspended for six months and then was not recommissioned as
an SLEO. In this § 1983 claim Nance challenges both the suspension and the failure to
recommission him.
More specifically, Nance complains that he was deprived of a property interest
attendant to his employment as an SLEO when he did not receive proper notice, either
that the proceedings might result in suspension or of the suspension itself. He maintains
that the failure to recommission him was in retaliation for his advocacy of the rights of
minorities in the Newark Police Department. However, we agree with the well-reasoned

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1Nance contends on appeal that the District Judge should have recused himself in view
of his prior employment by the City of Newark. Even if that issue has not been waived
for failure to raise it in the District Court (and it doubtless was), the argument is legally
frivolous. Judge Walls’ employment with the City of Newark ended in 1977, and the
notion that at this late date his impartiality can reasonably be questioned is utterly lacking
in merit.
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opinion of the District Court, finding that there were no genuine issues of material fact
and granting summary judgment for the defendants. In view of the District Court’s
comprehensive statement, we set forth our ratio decidendi in capsule form.1
First, with respect to the underpinning of Nance’s claim, we agree with the District
court that Nance lacked a property interest in his employment, for nothing within the
Special Law Enforcement Officers Act, N.J.S.A. 40A:14-146.14(a), supports the
commissioning or reappointment of SLEO’s upon the expiration of their terms. The
statute provides in pertinent part, “Nothing herein shall be construed to require
reappointment upon the expiration of the term.” Id. Nance seeks to evade the plain
language of the statute by citing the case of Santiago v. City of Vineland, 107 F. Supp. 2d
512, 555 (D.N.J. 2000), for the proposition that New Jersey law creates a property interest
in the position of SLEO. But Santiago is distinguishable.
Santiago had been re-appointed as an SLEO in January of 1996 for a one-year
term; then, in February of 1996 he was fired, allegedly without notice or a hearing. Judge
Orlofsky cited to the New Jersey statute creating the SLEO position, which reads:
“Special law enforcement officers may be appointed for terms not to exceed one year, and
the appointments may be revoked by the local unit for cause after adequate hearing,

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unless the appointment is for four months or less, in which event the appointment may be
revoked without cause or hearing.” N.J.S.A. 40A:14-146.14(a). He held that “[c]learly
New Jersey law created a property interest in [a] position as a special law enforcement
officer.” 107 F. Supp. 2d at 555. Judge Orlofsky was correct. Santiago had a “legitimate
claim of entitlement” to a one-year term as an SLEO, which in turn gave him a property
interest to which due process guarantees would attach. Thus, when the police department
failed to give him meaningful notice or an opportunity to be heard, there was a colorable
due process claim.
Our factual scenario is very different. Nance was admittedly suspended in the
midst of his last one-year term as an SLEO. Judge Walls simply went on to explain,
correctly, that once Nance’s final term had expired, he had no property interest in his
reappointment, see A17-18, an issue Judge Orlofsky never addressed in Santiago. At all
events, Nance’s claims about lack of notice are baseless for the reasons set forth in Judge
Walls’ opinion, including the existence of actual notice, Nance’s waiver of notice, and his
decision not to testify.
Second, even assuming that Nance’s speech was protected (as the District Court
found), and that Nance’s speech related to matters of public concern (in contrast to
general allegations of internal administrative improprieties within the Police Department,
and to personal and disciplinary matters related to Nance’s son and other police officers,
as respondents contend), the record compels the conclusion that (as the District Court

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found) Nance was not treated differently from similarly situated individuals who were not
commissioned as SLEOs due to alleged misconduct, and that the defendants would have
taken the action even in the absence of the allegedly protected activity. As the District
Court noted, the circumstances surrounding appellant’s suspension and the resulting
failure to reappoint him as an SLEO in 1999 had their origins in the February 27, 1998,
incident where appellant fired a warning shot and failed to have his weapon fully loaded,
which were violations of departmental policies. These factors dispatch the retaliation
claim.
The judgment of the District Court will be affirmed.

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