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Folded Suit 

Deputy Joe Harvey fought the law, and the law won

When Pima County Sheriff Clarence Dupnik gets a question on a normally friendly radio talk show, can he disparage a deputy he wants to rid from his department by saying:

The deputy was the source of 93 complaints--when the actual number was 73, and 33 were deemed trivial?

The deputy killed two people--even though the shootings were deemed justifiable?

The deputy violated people's civil rights?

Joe Harvey, the fired deputy who has been fighting for his job for more than four years, didn't think so. Neither did his union-supported lawyers. They filed a lawsuit against Dupnik alleging the county's 25-year sheriff had defamed him.

Judge Carmine Cornelio of Pima County Superior Court disagreed. He granted summary judgment, a rare move that stops the proceedings well before trial, for Dupnik, according to an order filed July 5.

The ruling is just the latest in the bitter battle Harvey, the Arizona Conference of Police and Sheriffs, and other deputy associations have waged against Dupnik. Harvey's turnstile litigation has resulted in a successful appeal of his termination, a win in Superior Court on that issue, a loss in the Arizona Court of Appeals and finally arguments before the Arizona Supreme Court, where a decision is pending.

All through it, Harvey has remained on the county payroll, making $25.89 an hour, or $53,581 a year plus benefits. He had pulled in the same raises the Board of Supervisors has allocated to other deputies.

Dupnik, a Democrat re-elected in November despite opposition from the same unions that support Harvey, fired Harvey in March 2001. Harvey appealed the decision to the county Law Enforcement Merit Council--the county's civil service panel that uses a different name when it considers cases involving sheriff's deputies and jail guards.

Harvey, a 14-year veteran, conceded under oath that he "straddled and slapped a handcuffed, shackled and wounded suspect and had done so, in part with the intent to elicit incriminating statements from the suspect," according to the record from the Court of Appeals.

Harvey, the Court of Appeals opinion noted, also "testified that he had another reason to slap the suspect--to keep him from losing consciousness before medical personnel arrived. Dupnik concluded from this testimony that Harvey had used an 'inappropriate interview and interrogation tactic' and demonstrated 'poor judgment' and that he had used 'excessive force.' "

But the Merit Council, in September 2002, found Dupnik's discipline of Harvey "shocking to one's sense of fairness" and voted unanimously to order Harvey's reinstatement with back pay.

Dupnik quickly appealed the decision, saying the Merit Council exceeded its authority. And Dupnik put Harvey on administrative leave, where he has been collecting full pay since March 2003.

Six months after he put Harvey on leave, Dupnik appeared on the Bert Lee Show, a friendly forum during which the late host would offer ornate adulation to the sheriff. On the Sept. 9, 2003 show, Dupnik took a call seeking an explanation why he had not put Harvey back on patrol. The call came from one of Harvey's friends and at Harvey's urging.

It was tee shot Dupnik could not avoid.

"We're talking one individual, an officer who basically has had 93 complaints, several lawsuits, killed two people, has been found to be violating people's civil rights, slapping people who were shot in the neck to keep them from passing out, things of that nature (and) disciplined umpteen times, suspended several times. I terminated him. The Merit Council said I shouldn't have. They put him back to work. We filed an appeal; he filed a lawsuit, and that's where we are."

Harvey and his union backers quickly enlisted Michael Storie, the Tucson lawyer who represented Harvey in the personnel matter, and Martin Bihn, a Phoenix lawyer, to file the defamation complaint. Storie is a member of the firm Piccarreta and Davis, which has achieved great success representing criminal defendants and cops accused of bad acts, but he lacked defamation expertise.

The county hired Lewis and Roca, a firm noted locally mostly for its land-use work and government relations. But Lewis and Roca's D. Douglas Metcalf, who gained media experience during his time at Brown and Bain, handled Dupnik's defense. Under its $75,000 contract, the county has paid Lewis and Roca $67,853 through the last billing in April.

On June 28, Judge Cornelio said Dupnik was entitled to say what he said.

"While casting Harvey in bad light, the sting or gist of 93 versus 73 complaints is the same," Cornelio said. "Although Harvey was suspended only once, the facts behind the suspension are damning. Hence a more complete and literal truth would have cast Harvey in worse light."

The decisions to settle lawsuits in cases involving Harvey, "particularly a $100,000 settlement, supports a belief of wrongdoing," Cornelio added.

Harvey did not contest that he had killed two people, actions that were deemed to be justified, and he did not, for the purposes of the defamation suit, contest that he is public figure. Such status raises the bar for defamation plaintiffs who must show that the disparaging comments were made with knowledge that they were false or with reckless disregard for the truth.

"Clearly Dupnik has strong opinions about Harvey and the Merit Council decision," Cornelio wrote in a ruling preceding his order to dismiss Harvey's suit. "When called upon to explain his opinions and reasons for action, Dupnik did. His explanation, either parsed out or as a whole, was a matter of public concern regarding a public figure. The gist or thrust of the statements, while negative about Harvey, is sufficiently truthful to merit free speech and qualified immunity."

Planting the question during Dupnik's radio appearance undercut Harvey's position in court.

"Given Harvey's participation in soliciting this opinion during a public radio interview," Cornelio said, "his position that the matter is a private versus public concern does not ring true. Dupnik, as a government official, speaking on these matters has a qualified privilege."

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