A former police officer fired in part for being a member of the Proud Boys and the city of Fresno are headed for a wrongful discrimination trial after a judge dismissed several city officials from the lawsuit.

The city fired Rick Fitzgerald, a 20-year police veteran, in 2021 after public complaints about his membership in the Proud Boys, which some claim is an extremist or hate group. Former Fresno police chief Paco Balderrama also held that view, calling the Proud Boys a hate group in a deposition in the case. Fitzgerald was also involved in a protest that turned violent.

On April 17, Fresno-based Judge Jennifer L. Thurston granted the city of Fresno’s motion for summary judgment — asking a judge to rule on the case based on the facts before it goes to trial — in part to dismiss Balderrama and former City Manager Thomas Esqueda from the lawsuit. Both have qualified immunity shielding them from liability.

Thurston also ruled that any damages suffered by Fitzgerald are limited to the time from April 9, 2021, to Sept. 16, 2021. That’s the window from when he was fired by the city to his case being adjudicated through internal measures.

“That’s the period when the damages are suffered because that’s the period when he’s been told he’s fired, he’s defamed, and he suffers that emotional distress. It may affect, as to the due process issue, his right to make a claim for monetary damages. He hasn’t been able to find an equivalent job,” Peter Bradley, attorney for Fitzgerald, told GV Wire.

Claim Against Dyer Dismissed

Thurston also dismissed a claim against Fresno Mayor Jerry Dyer that he had a direct role in Fitzgerald’s firing. However, the judge denied the city’s request to remove aspects of Fitzgerald’s First Amendment retaliation claim.

The city is using outside counsel, Fresno-based Whitney, Thompson & Jeffcoach LLP, for its legal defense.

Bradley said he will file for a trial date on the allegations that remain, such as defamation by Dyer and the city, violation of due process, and violation of his client’s First Amendment rights. The attorney also said he will consider filing an appeal of the judge’s April 17 ruling.

Fresno City Attorney Andrew Janz had no comment.

‘Conduct Unbecoming an Officer’

In its notice of termination, the city cited several violations by Fitzgerald of the Fresno Municipal Code and Fresno Police Department policy manual. These included conduct unbecoming an officer, violating any misdemeanor or felony statute, and “conduct which is contrary to good order, efficiency or morale, or which tends to reflect unfavorably upon the Department or its members.”

Regarding the defamation claim, Bradley said Dyer posted on social media accusing Fitzgerald of being a racist.

Dyer also issued a news release on April 9, 2021, saying “After discussions with Chief Balderrama regarding the ongoing internal investigation of Officer Rick Fitzgerald, who is accused of participating with the Proud Boys extremist group, it is clear to me that there were egregious violations of department policy. I am pleased that Officer Fitzgerald will no longer be serving as a police officer with the City of Fresno. As Mayor, I want to reiterate to the community that I will not tolerate any form of racism displayed by City of Fresno employees.” 

Countered Bradley: “We have established in deposition that nobody believed that Mr. Fitzgerald was a racist. There was no evidence that he was a racist, and the evidence was to the contrary, that he was not a racist.

Fitzgerald remains in the Fresno area, working in retail.

Officer Once a Proud Boy

Court documents showed Fitzgerald joined the Proud Boys in 2020. He attended a rally in November 2020 in Sacramento and allegedly got into a scuffle with a person holding a Pride flag.

“At one point, he was captured on video in the midst of a violent scuffle between two opposing groups of protesters, his hands on a rainbow-colored flag, apparently pulling at it as though he was  trying to take it from the woman who was holding it,” the ruling from Thurston said.

Fitzgerald said in a deposition that he joined the Proud Boys after believing it was “basically just a men’s fraternity.” He assumed the nickname “Sheepdog.” He posted material online about fighting antifa, and other pro-violence content. In a deposition, he downplayed the posts as “innocuous cosplay.”

Months later, Fitzgerald was spotted on March 14, 2021, at a counterprotest at the Tower Theatre, standing near a group of Proud Boys. Protesters rallied at the location, complaining about the pending sale of the landmark theater to Adventure Church. Someone linked Fitzgerald to the Sacramento incident, and there were calls for his termination from groups like the Lawyers’ Committee for Civil Rights Under Law.

The city launched an investigation into Fitzgerald, initially placing him on leave. The department accused Fitzgerald of misconduct while off-duty for the Sacramento incident. He was also accused of violating the department’s tattoo policy. The city terminated Fitzgerald on April 9, 2021. He initially appealed, but withdrew to file a lawsuit (first in the state court, but later moved to the federal court).

Fitzgerald said he was trying to prevent the woman from hitting him with the flag. He did not report the incident to supervisors or other law enforcement. The incident led Fitzgerald to resign from the Proud Boys the next day. He formed his own group, “Sons of ’76.”

Bradley said that in deposition testimony, Balderrama and Dyer called Fitzgerald “an excellent police officer and there was nothing in his performance that was a problem.”

Regarding the Sacramento incident, Bradley said there were never any charges filed. He said that is a standard to terminate an officer. The city “never asked him for his side of the story, which is basic due process.”

“The court acknowledged that there’s a triable issue of fact about whether his due process rights were violated by failing to make an inquiry to him about the basis of the charge against him. That’s an open question at this point for the jury to decide,” Bradley said.

Bradley said Fitzgerald always covered up his tattoo, and does not recall an officer ever being fired over the issue.

Attorney: A Right to Be Member of the Proud Boys

The notice of termination included several descriptions of the Proud Boys as a right-wing extremist group and similar to criminal street gangs.

Bradley said the Proud Boys have never been declared an illegal organization.

“You cannot base your policies on the content of the message expressed by any group. That’s case law for the last hundred years and you cannot have content-based discrimination,” Bradley said. “It’s a right-wing nationalist organization, but that does not make it racist.”

City employees are allowed to be members of unpopular groups such as the Communist Party, Bradley said.