In a recent precedent-setting opinion, the Third Circuit Court of Appeals significantly restricted the ability of police departments to suspend police officers pending investigation in Pennsylvania. The decision in Schmidt v. Creedon, __ F.3d __ (3rd Cir. 2011) (pdf) makes clear that absent extraordinary circumstances, prior to suspending a police officer for any reason, a police department must provide the officer with notice and a hearing.

In Schmidt, the plaintiff, a police officer, was suspended and ultimately terminated after he entered criminal charges against his superior officers into a criminal record data base. According to the employer, following a dispute, the officer left his duty area, entered information that there was probable cause to arrest some of his superiors officers, and failed to report these allegations through his chain of command. After the department conducted a brief investigation into the incident, the plaintiff was suspended pending further investigation. The officer was suspended three days after the incident occurred, and was not questioned or interviewed before he was suspended. The officer was eventually terminated, but reinstated by an arbitrator with no back pay.

The plaintiff filed suit against the department and some of his superior officers, alleging that they violated the 14th Amendment of the United States Constitution by suspending him without providing him with notice of the charges against him or a hearing. Under the 14th Amendment, a government actor cannot deprive an individual of life, liberty or property without due process. In the employment context, the courts have held that if another statute, such as a civil service statute, provides employees with protection from suspension or termination, then such employees have a property interest that cannot be taken away without due process. Interestingly, the court relied on a provision in the Borough Code to find that the plaintiff had a property interest in his job because the Borough Code provides that police officers may not be suspended or terminated without just cause.