429 F.2d 901 (7th Cir. 1970), 17880, Muller v. Conlisk

Docket Nº:17880.
Citation:429 F.2d 901
Party Name:Jack MULLER, Plaintiff-Appellant, v. James B. CONLISK, Harold Brown, James Dunworth, and William Hougesen, Defendants-Appellees.
Case Date:June 29, 1970
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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429 F.2d 901 (7th Cir. 1970)

Jack MULLER, Plaintiff-Appellant,


James B. CONLISK, Harold Brown, James Dunworth, and William Hougesen, Defendants-Appellees.

No. 17880.

United States Court of Appeals, Seventh Circuit.

June 29, 1970

John Henry Schlegel, David A. Goldberger, Alfred R. Lipton, Chicago, Ill., for plaintiff-appellant.

Raymond F. Simon, John J. George, Richard L. Curry, Acting Corp. Counsel of the City of Chicago, Chicago, Ill., for defendants-appellees, Marvin E. Aspen, Asst. Corp. Counsel, of counsel.

Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit judges.

HASTINGS, Senior Circuit Judge.

Pursuant to Title 42 U.S.C.A. § 1983 and Title 28 U.S.C.A. § 2201, plaintiff Jack Muller, a detective employed by the City of Chicago Police Department, brought this action in the district court against defendants, Superintendent of the Chicago Police Department and members of the Disciplinary Board of the Department. He sought declaratory and injunctive relief from the operation of Police Department Rule 31 and a reprimand given to him under such rule. He alleged that the rule, on its face and as applied, infringes his right of free speech guaranteed by the First and Fourteenth

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Amendments to the United States Constitution. The district court dismissed the complaint for failure to state a cause of action. We reverse.

In October, 1967, while assigned to an auto theft unit, plaintiff discovered that members of another such unit had converted to their own use certain stolen property recovered by them in the course of their duties. He immediately reported the specific facts known to him to his Commander, who in turn informed the city-wide Commander of the Auto Theft Division. Plaintiff waited five days and saw no indication that the charges were being investigated. He then personally presented the charges, in writing, to the Superintendent of the Police Department.

Approximately three weeks later, plaintiff was interviewed by television news reporters concerning the charges. He had not previously disclosed the existence or contents of the charges to the news media. During the interview, a reporter asked plaintiff why he had not gone to the Police Department's Internal Inspection Division (IID) with the charges. Plaintiff replied: 'The IID is like a great big washing machine. Everything they put into it comes out clean.' Plaintiff had in the past reported a similar charge to the IID and based his comment on what he thought was the unsatisfactory handling of his past report.

Some months later, plaintiff was twice summoned before the Deputy Chief of Detectives of the Police Department to be orally reprimanded for his comment to the news media. He refused to accept the oral reprimand and demanded a hearing before the Department's Disciplinary Board.

After a hearing, the Disciplinary Board found plaintiff had violated departmental Rule 31, which prohibits policemen from: 'Engaging in any activity, conversation, deliberation, or discussion which is derogatory to the Department or any member or policy of the Department.'

The Board ordered that a written reprimand be placed in plaintiff's official police service record. This record would be reviewed in connection with any future promotion for which plaintiff may be considered and the reprimand might limit his opportunities for advancement in the Department. The Board further ordered plaintiff 'to henceforth desist from any derogatory comments reflecting on the image or reputation of the Chicago Police Department.'

The district court found that the alleged restriction on plaintiff's federally protected right of free speech caused by the reprimand was so 'marginal' that Count I of the complaint, requesting that the reprimand be expunged from his record, failed to state a cause of action under 42 U.S.C.A. § 1983. The court further found that 'since plaintiff cannot complain about the reprimand, Count II (challenging the constitutionality of Rule 31 on its face) asks for an advisory opinion concerning a future, hypothetical application of Rule 31.' On this basis, the court also dismissed Count II.

We consider first the dismissal of Count II. The district court apparently concluded that plaintiff lacked standing to challenge Rule 31 on its face or that the controversy was not ripe for adjudication or both. These conclusions are based upon a strained construction of the true harm complained of in Count II. Contrary to the court's apparent assumption, Count II in no way depends upon the existence of the reprimand given to plaintiff and found by the court to be inconsequential. The allegation of harm in Count II is that: 'Plaintiff is restricted in his right of free speech in that Rule 31 * * * is vague and overbroad in violation of the First and Fourteenth Amendments * * * so * * * that Plaintiff cannot tell what speech is proper and what is proscribed; and further, that it proscribes lawful speech.'

Plaintiff's standing to raise the constitutional question is clear on the basis of this allegation, even on the assumption that his conduct in the instant case was properly subject to departmental regulation by a narrowly drawn

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rule. As stated by the Supreme Court in N.A.A.C.P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963): 'The instant (rule) may be invalid if it...

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