Chief Kevin Hale, left, and Frank Heusser, Jr., right.
Judge Charles Haight’s ruling states that Hale has the ability to remove companies from the city’s rotating list of tow companies — and that the owners of Frank’s LLC, based on Wakelee Avenue, simply did not prove that their Constitutional rights were violated.
Hale had removed Frank’s Service Station from the department’s “tow list” in September 2007, after the company’s owners — Frank Heusser, Sr. and Frank Heusser, Jr. — were arrested in connection to a verbal dispute with another towing company. The charges were later reduced to infractions.
When a tow truck is needed after a car crash, police call local towing companies to clear the scene. It’s an important revenue source for towing companies. In an effort to make sure that a single company doesn’t get all the business, police departments use a rotating list of tow companies.
In November 2007, the Heussers filed a federal lawsuit against Hale, claiming the removal violated their due process rights under the Fourteenth Amendment. In March 2008, they tweaked their lawsuit, claiming that Hale was further retaliating against them because they were suing. That violated their First Amendment rights, the Heussers argued.
When Frank Jr. took over the business and changed the name to Frank’s LLC, a second federal lawsuit was filed against the chief. It added the City of Ansonia as defendants. The Heussers further claimed the chief’s actions were hurting their ability to operate their business.
The two lawsuits were combined into a single action.
In a 38-page written decision dated April 15, federal Judge Charles Haight agreed with arguments set forth by Hale’s attorney, who didn’t return a call for comment.
For legal purposes, a towing company on the police department’s tow list has an informal agreement with the city that makes the company a city employee, Haight ruled. For a government employee to claim “First Amendment retaliation,” the employee has to prove the speech in question was “on a matter of public concern.”
The Heusser’s removal from the tow list may have damaged their wallets, but it was not a matter of public concern, the judge ruled.
The judge also said the chief had the discretion to remove companies from the tow list — and that the Heussers didn’t have enough evidence to prove the other Constitutional claims in their lawsuit.
“We’re happy with the decision and we’re not surprised,” Hale said Tuesday. “We felt we were in the right all along. It took awhile, but I’m glad that it’s over. Now we move on.”
Rob Serafinowicz, the attorney who represented the Heussers, said he respected the judge’s decision — but his clients are not moving on.
Serafinowicz said he plans to re-file the case in state court.
“The decision can be best summed up this way — it says under the law the chief didn’t violate their Constitutional rights, but it didn’t say he didn’t do anything wrong,” Serafinowicz said. “There are a lot of things you can do to harm people that don’t rise to the level of Constitutional violation.”
A copy of the judge’s decision follows:
