Absent Evidence That Polygraph Charts From Plaintiff's Disciplinary Hearing Were Intentionally Incorrectly Scored His Wrongful Discharge/First Amendment Claim Fails

On April 4, 1999 Daniel Smock became an Illinois State Police cadet. This was not his first experience in law enforcement. Between 1996 and 1999, Smock served as an auxiliary police officer for the City of Canton. In that capacity, Smock was on patrol with Lieutenant David Ayers one September night in 1998. At some point, the Ayers/Smock patrol came across two other Canton City Police officers, Sergeant Richards and Officer Graham, who were engaged in a traffic stop. Ayers apparently noticed that Richards and Graham were using their flashing yellow lights in conjunction with their mars lights--a violation of department procedure. Over the radio, Ayers directed the other officers to turn off their yellow lights.

Later that same night, Ayers and Smock again came across Sergeant Richards and Officer Graham. The Richards/Graham patrol was engaged in another traffic stop where they were using the yellow flashing lights in conjunction with the mars lights again. Ayers told the other officers something like "don't you guys get the clue [about using the yellow lights?]" After being told that the Richards/Graham patrol did not need assistance with the traffic stop, Ayers and Smock drove away.

Sometime after this incident, Ayers had formal disciplinary charges filed against him. One of those charges related to whether Ayers had sworn at Richards during the second traffic-stop incident. Smock testified that Ayers did not use profanity or act in a degrading manner towards Richards or Graham. Canton Police Lieutenant Dean Putman however, claimed that Smock had said during an interview that he did hear Ayers swear at Richards. This claim of a prior inconsistent statement was ultimately reported to the Illinois State Police, who initiated an investigation into the matter.

Sergeant Eric Hall of the Illinois State Police Division of Internal Investigations investigated the case against Smock. After reviewing the transcripts of the disciplinary hearing and conducting various interviews, Hall suggested that Smock take a polygraph exam. Smock agreed.

On August 26, 1999, Smock submitted to a polygraph examination conducted by Terrance G. McCann at the Illinois State Police Forensic Crime Laboratory. McCann, who had been trained in the Reid approach to lie detector scoring, has been a licensed polygraph examiner since 1976. After scoring the exam, McCann determined that Smock was untruthful when answering the relevant questions.

The entire file, including the polygraph results, was sent to Deputy Director Harold Nelson. Nelson reviewed the file with an eye towards "integrity and truthfulness." In the words of the defendant's brief, "Nelson considered it significant that Putman and Richards had higher, more responsible positions and were attesting to and agreeing upon the same allegation." Nelson recommended that Smock be terminated--a decision he says was partially based on the polygraph results, but one he probably would have reached without the lie detector result. Nelson's boss, Director Nolan, accepted the recommendation and fired Smock.

Smock later applied for a position with the Peoria County Sheriff. That office conducted a pre-employment polygraph examination in which Smock was asked about the facts and circumstances surrounding his termination from the Illinois State Police. That polygraph indicated truthfulness on the matters that McCann's exam indicated deception.

Smock brought this suit claiming that he was wrongfully discharged as a result of his First-Amendment-protected speech. The district court granted summary judgment against Smock. The 7th Circuit affirmed, holding that Smock did not establish that McCann incorrectly scored his test to make it appear as if he had lied at the disciplinary hearing, as was required to show that Smock was terminated in retaliation for his speech at that hearing, in violation of the First Amendment, rather than for lying.

Smock v. Nolan

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The 7th Circuit Court of Appeals’ jurisdiction includes Illinois, Indiana and Wisconsin.

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