Fulton County Superior Court
***EFILED***LW
Date: 6/8/2020 4:07 PM
Cathelene Robinson, Clerk

IN

THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA

IVORY STREETER,

)

and

)

MARK GARDNER

)

Petitioners,

CIVIL ACTION NO.

)
)

v.

2020CV336938

)
)
)

ERIKA SHIELDS,

)

In her capacity as

)

Chief
of the City of Atlanta Police Department,

)

)

KEISHA LANCE BOTTOMS,
In her capacity as

Mayor of the

)

City

)

Of Atlanta.

)

)

Respondents.

)

PETITION FOR WRIT OF

COME NOW Petitioners,

MANDAMUS

Ivory Streeter and

Mark Gardner

and file this Petition for Writ of Mandamus pursuant to O.C.G.A.
showing that “a defect of legal justice would ensue from a failure

(“Petitioners”),

9—6-20

§

to

from improper performance” of “official duties.” In support of the
Petitioners show this Court the following:

perform or

instant writ,

1.

Respondent Erika Shields

is

the Chief of the Atlanta Police Department, a

department of the City 0f Atlanta, a municipal corporation, with

226 Peachtree

its

principal

SW, Atlanta, Fulton County, Georgia, 30303.
Respondent may be served with Summons and a copy ofthis Petition at that
address or wherever she may be found within the State of Georgia.
address

at

St.

 2.

Respondent Erika Shields
Court

in

is

subject to the jurisdiction and venue of this

her capacity as the Chief of the Atlanta Police Department.

3.

Respondent Keisha Lance Bottoms

Mayor ofthe City of
Atlanta, a municipal corporation, with its principal address at 55 Trinity Avenue
SW, Suite 2500, Atlanta, Fulton County, Georgia, 30303. Respondent may be
served with

may

Summons and

is

the duly elected

a copy of this Petition at that address or wherever she

be found within the State of Georgia.

4.

this

Respondent Keisha Lance Bottoms is subject to thejurisdiction and venue of
Court in her capacity as the Mayor 0fthe City of Atlanta.

5.

At

times material, Petitioner Ivory Streeter was employed by the City of
Atlanta Police Department, in the position of Police Investigator. Such position is
all

sworn and below the rank of Lieutenant.

6.

employed since December 2, 2003. As
such, Officer Streeter was a regular, nonprobationary employee 0f the City of
Atlanta. A nonprobationary employee is one who has worked for the City of
Atlanta for more than six months.‘ See City of Atlanta, Part II, Chapter 98, Article
Petitioner Ivory Streeter has been so

Division 9 “Probationary period reports,” §1 14-332, “Dismissal during
probationary period.”
II.,

'

The

longest “probationary period” contained in the City of Atlanta ordinances

is

twelve months. See City of Atlanta, Part II, Chapter 98, Article II., Division 2
“Promotion Policy,” §98-85(a), “Probationary period” which Petitioner exceeds.

 7.

At

all

times material, Petitioner

Mark Gardner has been employed by

the

City 0f Atlanta Police Department in the position of Police Invetigator. Such
position

is

swom and below the

rank of Lieutenant.

8.

Mark Gardner has been so employed since August 19, 1997. As
Officer Gardner was a regular, nonprobationary employee of the City of
Petitioner

such,

Atlanta.

A nonprobationary employee

is

one

who

has worked for the City of

Atlanta for more than six months? See City of Atlanta, Part
II.,

II,

Chapter 98, Article

Division 9 “Probationary period reports,” §1 14-332, “Dismissal during

probationary period.”
9.

On May
arrest

30, 2020, Petitioners

team with

riot

were tasked

t0 assist other officers

control and enforcement of a 9:00

Respondent Bottoms within the

and as an

PM curfew instituted by

city limits ofAtlanta; particularly, Petitioners

were

posted near the intersection of International Boulevard and Centennial Olympic

Park Dr., Atlanta, Georgia.

10.

While so engaged, the

Petitioners, along with four other persons also

employed by the City of Atlanta Police Department as Police Officers, were
involved in a use of force incident that arose within the scope and course oftheir
duties.

The

was captured on video through body worn cameras.
that Petitioners’ use of force was improper.

incident

Respondents allege

11.

force

2

The

The Petitioners deny Respondents’ allegations and contend that their use of
was proper and in compliance with the law, the policies of the Atlanta Police

longest “probationary period” contained in the City of Atlanta ordinances

is

twelve months. See City of Atlanta, Part II, Chapter 98, Article 11., Division 2
“Promotion Policy,” §98-85(a), “Probationary period” which Petitioner exceeds.

 Department, prevailing standards of law enforcement, and the training provided to

them through the City of Atlanta Police Department and the

State of Georgia.

12.

On May

3

employment by

l ,

2020, the Petitioners were summarily dismissed from their

Petitioner Shields, without an investigation, without proper notice,

without a pre—disciplinary hearing, and

in direct violation

ofthe municipal code of

the City of Atlanta. Contrary to city policy as well as the policies, procedures,

customs, and practices of the City of Atlanta Police Department, Petitioners were

never interviewed by the Office 0f Professional Standards or any individual
regarding this incident to provide their statements.

13.

Petitioners have a property interest in theirjobs. Pursuant to the charter,

ordinances, and policies ofthe City of Atlanta, they can only be disciplined or

terminated for cause.

14.

Petitioners have rights to procedural due process prior to and following

any

disciplinary action pursuant to the charter, ordinances, and policies of the City of

Atlanta.

15.

The other four police officers who were involved in the incident were
engaged in substantially similar conduct, which was also alleged to be improper,
but have not been dismissed and are, by information and belief, either on paid
leave or have been assigned to non-enforcement duties.

16.

The municipal code ofthe City of Atlanta,

Part

II,

Chapter 114, Article VI.,

Division 3 “Disciplinary Action,” §1 14—528(a), “Cause for action,” states the

following (in pertinent part):

 “No employee

shall

be dismissed from employment or otherwise adversely

affected as to compensation or

employment

status

except for cause.”

(emphasis added).

17.

The municipal code of the City of Atlanta, Part II, Chapter 14, Article VI.,
Division 1 “Generally,” §1 14-502, “Definitions,” Defines Adverse action in the
l

following

way

(in pertinent part):

“Adverse action means a disciplinary action taken for cause by a
department head 0r designee which results in suspension without pay,

demotion or dismissal of a regular, nonprobationary employee

in the

any regular nonprobationary sworn
officer of the department of police who holds the rank of lieutenant or
classified service ofthe city or

below.

.

.”

(emphasis added).

18.

The municipal code ofthe City of Atlanta,
Division

3.,

Part

II,

Chapter

1

14, Article VI.,

“Disciplinary Action,” §1 14-530(a), “Procedure for imposing adverse

actions,” states in pertinent part the following:

“Notice required.

An employee

against

whom

an adverse action

is

to

be

taken shall be given a written notice of proposed adverse action, signed by
the appointing authority or designee, at least ten working days prior t0 the
effective date

ofthe proposed adverse action. However, in an emergency

situation, the adverse action

may become

effective immediately following

the employee’s response, if any.” (Emphasis added).

19.

The municipal code ofthe City of Atlanta, Part II, Chapter 1 14, Article
Division 3., “Disciplinary Action,” §1 14-532, “Emergency Situations” defines
term “emergency situation,” and codifies

its

VI.,

the

“conditions of use” as follows:

The appointing authority or designee niay
immediately suspend an employee with pay upon the determination
“(a) Conditionsfor use.

the following circumstances exist:

that

 There

cause to believe that the employee has committed a
crime involving moral turpitude or a felony which is job related or
(1)

is

employee from effective performance of the
employee’s job.
deters the

The retention of the employee in active duty status may result
damage to property 0r may be disruptive, detrimental or injurious
(2)

the employee, coworkers, subordinates or the general public or

be disruptive to the daily operation of a

city

in

to

may

government function.

ofemergency action. The appointing authority or designee shall
give the employee against whom the emergency action is taken a notice of
emergency action in writing, not later than five working days after the
effective date of the emergency action. The notice of emergency action
shall include a statement of the emergency situation that caused the action
to be taken. Should the action be an adverse action, the notice shall meet
the requirements ofsection 114-530. A copy of such notice shall be sent
to the commissioner of human resources.” (Emphasis added).
(b) Notice

20.

The
meet the

actions of the Petitioners, assuming arguendo were improper, do not

criteria set forth

above and defined as “Emergency Situations.”
21.

Assuming arguendo
criteria set forth

were improper and met the
“Emergency Situations,” Respondents

Petitioners’ actions

above and defined as

failed to follow the procedures set forth in the ordinances relating to

“Emergency

Situations” in that they failed to provide proper notice and

terminated their employment without an investigation, proper notice, and a
hearing.

22.

The unlawful
Bottoms,

who

dismissal of the Petitioners

stated publicly in a

“Afier review of that

was ratified by Respondent

news conference held on Sunday, May

footage, ChiefShields

and I have made

315‘,

the determination

 that

two 0f the officers involved

in the incident last night will

be terminated

immediately.”
23.

Respondent’s summary dismissal of the Petitioners violated the Petitioners’
clearly established legal rights created

Atlanta, Part

II,

by operation of the Municipal Code of

Chapter 114, Article VI., Division

3.,

“Disciplinary Action,” §1 14-

530, and §1 14-532.

24.

The Respondents have a

clear ministerial duty to

comply with the municipal

code of the City of Atlanta.

25.

Assuming arguendo Respondents had
that

discretion to act, Petitioners assert

Respondents committed a gross abuse of discretion.

26.

Petitioners have been denied both their procedural

equal protection rights as guaranteed by the Fourteenth
States Constitution as well as Article

the Georgia Constitution.3

They

I,

Section

I,

due process

Amendment

Paragraph

I,

rights

to the

and

United

and Paragraph

II

of

are entitled to the procedural due process

“Under Georgia law, generally, one in public employment has no vested right to
such employment. However, a public employee has a property interest in his job if
his employment allows dismissal only for cause.” DeC/ue v. City ofClayton, 246
GaApp 487, 489 (2000). See also Stidwell v. City ofAtlanta, 2018 WL 4999971
(ND. Georgia, 2018): “Public employees may have a protectable interest in their
jobs such that they may not be terminated without the protection of procedural due
process under the Fourteenth Amendment [citing from Bd. OfRegents v. Roth, 408
U.S. 564, 577 (1972)]. “This interest is defined as a ‘property interest,’ the
dimensions of which are defined by existing rules or mutually explicit
3.

,

 protections afforded

them through the municipal code of the City of Atlanta,

including a statutorily created right of notice in regard to an adverse
action,

They

and

in the case

of an emergency

action, a statutory right to paid suspension.

are additionally entitled to receive equal treatment under the

to the other the officers

who

employment

law as compared

are similarly situated.

27.

Petitioners have suffered irreparable injury to their personal

reputations as a result of their unlawful dismissal.

As

and professional

a result of the unlawfiJl

action of the Respondent, the Petitioners have

become public

objects of ridicule. Their unlawfiJl termination

was unnecessarily public and has

attracted national

media

spectacles and

attention.

28.
Petitioners have

and are suffering a

loss

of pay

that

affecting

is

them daily

through both a continuing violation of their rights and hampering their ability to

defend themselves. Their termination also places their

state

Peace Officer

certifications in jeopardy as their terminations trigger an investigation with the

Peace Officer Standards and Training Council. See

GA Rules & Regs 464-3-.05 &

464-3-.06.

understanding that stem from an independent source such as state law. ..

,9,

[citing

from Peterson v. Atlanta Hous. Auth, 998 FG.2d 904, 91 3-14 (1 1‘“ Cir. 1993)].”
See also City ofClebume, Texas v. Cleburne Living Center, 105 S.Ct. 3249
(1985): “The Equal Protection Clause of the Fourteenth Amendment commands
that

n0 State

shall

“deny

of the laws,” which

t0

any person within

its

jurisdiction the equal protection

essentially a direction that all persons similarly situated
should be treated alike.” See also Jackson v. Raflensperger, 2020
25165 1 7,
is

WL

5 (Ga. 2020):

work

“We have

consistently treated individuals

who

perform the same

as being similarly situated for equal protection purposes.”

at

 29.

Petitioners have a clear legal right to the relief sought

adequate remedy

at

law exists

to reverse their terminations

and show

that

no

and prevent further

denial of their constitutional rights in a timely manner. Respondents should be

compelled to immediately

reinstate the Petitioners in their

employment with back

pay, restoration of sick and annual leave, compensatory time, seniority, and any

and

all

other associated benefits of employment. Respondents should likewise be

compelled to comply with the procedural framework

code of the City of Atlanta as

it

set forth in the

municipal

concerns the Petitioners.

30.

Petitioners have clear legal rights to the relief sought, but

other than

mandamus,

have no remedy,

to obtain such relief.

WHEREFORE, Petitioners pray:
1.

That Respondents be served with a
Petition for Writ

2.

a copy of the instant

of Mandamus;

This Court hold a
petition as

Summons and

soon as

full

hearing regarding the relief sought

practical, directing the

Respondents

before this Court within not less than ten nor

more than

in the instant

to

be and appear

thirty days, as

required by O.C.G.A. § 9-6-27(a), then and there to be heard, and
cause, if any they have,

3.

That

this

employment ofthe

restoration of sick
all

a Writ of Mandamus should not be granted;

Court issue a writ of mandamus compelling Respondents to

reinstate the

and

why

show

petitioners immediately, including backpay,

and annual leave, compensation time,

seniority,

other associated benefits of employment; instanter;

and any

 4.

That

this

Court issue a writ of mandamus compelling Respondents to fi111y

comply with
Atlanta in

5.

That

this

all

the procedures set forth by the municipal code of the City of
future dealings with the Petitioners instanter.

Court will award Petitioners any and

all

attorney fees and expenses

incurred and necessitated by the filing and prosecution of the instant
petition;

6.

That
.

Thls

this

and

Court award

$43.

all

other relief allowable by law.

day ofJune 2020.

LoRusso

L

G

e

3.

aw Firm,

P.C.

L‘oRusso

orgia Bar

Number 458023

Ken W. Davis
Georgia Bar Number 705045
1827 Powers Ferry Road, SE
Building 8 Suite 200
Atlanta, Georgia

770—644-2378
770-644-23 79

30339

(f)

lance@lorussolawfirm.com
ken@lorussolawfirm.com
Counsel for Petitioners