Moore v. City of Wynnewood

• Decision Date: 13 June 1995
• Docket Number: No. 94-6164,94-6164
• Citation: 57 F.3d 924
• Parties: Kenneth D. MOORE, Plaintiff-Appellee, v. CITY OF WYNNEWOOD, a municipal corporation; David Sanders, individually and in his official capacity as Chief of Police for the city, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 924

57 F.3d 924

Kenneth D. MOORE, Plaintiff-Appellee, v. CITY OF WYNNEWOOD, a municipal corporation; David Sanders individually and in his official capacity as Chief of Police for the city, Defendants-Appellants.

No. 94-6164.

United States Court of Appeals Tenth Circuit.

June 13, 1995.

Michael A. Taylor of Taylor, Moore & Plater, Oklahoma City, OK, for plaintiff-appellee.

Andrew W. Lester of Lester, Bryant, Ganz & Beech, Oklahoma City, OK, (Laura L. Holmgren-Ganz with him, on the briefs), for defendants-appellants.

Before EBEL, KELLY, Circuit Judges and BROWN, ^* District Judge.

EBEL, Circuit Judge.

Plaintiff-Appellee Kenneth Moore ("Moore") claims in this 42 U.S.C. Sec. 1983 action against Defendants-Appellants the City of Wynnewood (the "City") and Wynnewood Chief of Police David Sanders ("Sanders") (collectively "Defendants") that he was demoted from his position as Deputy Chief of the Wynnewood, Oklahoma Police Department in violation of the First Amendment because of public statements he made at a Wynnewood City Council meeting. Moore also brought pendent state claims for wrongful demotion against Defendants, claiming that the adverse employment decisions taken against him violated Oklahoma tort law. Defendants moved for summary judgment on all claims, asserting that they did not violate Moore's First Amendment or state law rights and that Sanders is protected against suit by qualified immunity. The district court denied Defendants' motion except as to Moore's state tort claim against Sanders. Defendants now appeal.

In exercising our jurisdiction over Sanders' interlocutory appeal of the district court's denial of qualified immunity, we conclude that Moore has failed to show that his First Amendment rights were violated, and, therefore, we reverse the judgment of the district court. We also exercise pendent appellate jurisdiction over the City's interlocutory appeal because our ruling that Moore has failed to establish a First Amendment claim disposes of Moore's claims against the City, both as to Moore's Sec. 1983 cause of action and as to his wrongful demotion claim, to the extent that it is premised on the claimed violation of Moore's First Amendment rights.

I. FACTS

Defendants do not dispute that they demoted Moore from his position as Deputy Chief of the Wynnewood Police Department, at least in significant part, because of statements he made at a Wynnewood City Council meeting on June 8, 1992. The statements related to events that had taken place about two weeks earlier in Wynnewood when two police officers--Officers Boucher and Bishop--responded to a shooting incident in a predominantly black neighborhood. A potentially riotlike situation developed when the officers arrived, with individuals throwing rocks at the police and another vehicle speeding at the officers when they exited their patrol car, and Boucher and Bishop had to call for back-up. As a result of the incident, members of the black community requested a meeting with Wynnewood officials to address the events and the police officers' actions. First, the police department conducted an investigation that concluded that proper procedures had been followed. Then, the City Manager, a council member, Police Chief Sanders, and Officers Moore, Boucher, and Bishop held a meeting with members of the community.

Following that first meeting, the incident came up again at a regularly scheduled city council meeting. Moore attended the meeting and addressed the incident, purporting to speak for the police department. ¹ Moore was in the middle of his scheduled patrol shift when he went to the meeting, and he had not been authorized to leave his shift duties in order to attend the meeting or to speak on behalf of the department. Moore did not inform his supervisors or dispatcher that he was leaving his patrol for over three hours to attend the meeting, and he was the only officer scheduled for patrol during that shift.

At the meeting Moore stated that the officers had followed department procedures during the relevant incident. However, Moore also stated that the incident was the culmination of prior problems created by a particular officer. Specifically, Moore explained that

I don't think we've got a police department problem. A police department community problem. I think we have a police officer and community problem.... This thing that happened the other night ... was the culmination of an attitude and a theme that's been going on for quite awhile.

Appellant App. at 108. Moore concluded that "we do have a police officer image problem. Now I don't like to stand here and slam a fellow officer but that's the way it is." Id. Moore did not name the particular officer, but later stated that he was referring to Boucher.

Defendants claim that Moore's statements angered other officers and disrupted the small police department. The Wynnewood Police Department had only six officers at the time, including Moore and Chief Sanders. Moore denies that his comments were disruptive. Nonetheless, Chief Sanders demoted Moore from deputy chief to patrol officer on June 15, 1992. Defendants maintain that Moore was demoted because he left his scheduled patrol, criticized a fellow officer in public without authorization, and significantly disrupted the functioning of the department. ² The city manager approved Sanders' decision, and Moore then appealed to a city personnel board pursuant to the City's charter. The board upheld the demotion, finding that "there are serious disagreements with Chief Sanders and Assistant Chief Moore, which make it impossible [for them] to work together in this capacity." Id. at 166.

Moore maintains that he was demoted because he exercised his First Amendment rights in stating that the department had an image problem with one of its officers, whereas Chief Sanders interpreted those remarks as criticism of his handling of the department. Moore further claims that Defendants harassed him after he spoke at the city council meeting, by issuing him letters of reprimand, suspending him, and setting his shift schedules to conflict with his extracurricular duties as a minister. As a result of this purported harassment, Moore subsequently resigned as a patrol officer, but continued to serve as a Drug Abuse Resistance Education ("D.A.R.E.") officer.

After his resignation, Moore brought this action for deprivation of his First Amendment rights under 42 U.S.C. Sec. 1983 and for the pendent state tort of wrongful demotion. ³ Defendants moved for summary judgment on both causes of action, stating that Moore was not entitled to any relief because his statements were not protected by the First Amendment, and because he was demoted for his job performance and not the exercise of his First Amendment rights. Defendants argued further that they were immune from liability on the state law claim under Oklahoma's Governmental Tort Claims Act. Okla.Stat. tit. 51, Sec. 153. Sanders also raised a qualified immunity defense to Moore's Sec. 1983 claim against him in his individual capacity. The district court ruled that Sanders was not entitled to qualified immunity and denied summary judgment as to Defendants on Moore's First Amendment claim. On the state wrongful demotion cause of action, the court granted Sanders' motion for summary judgment based on state immunity, but found that the City was not entitled to immunity and denied its motion for summary judgment. Defendants now bring this timely appeal. Sanders appeals the district court's denial of his motion for summary judgment on the grounds of qualified immunity. The City appeals the court's denial of its motion for summary judgment on both Moore's Sec. 1983 and wrongful demotion claims.

II. DISCUSSION

A. Jurisdiction

As a threshold matter, we first address our jurisdiction to consider these appeals. Although our jurisdiction over Sanders' appeal on his defense of qualified immunity is well established, the district court's denial of the City's motion for summary judgment is not a final decision and does not fit into those category of orders that are interlocutorily appealable. Nevertheless, as explained below, we conclude that we can consider this appeal under the doctrine of pendent appellate jurisdiction.

As a general rule, the denial of summary judgment is not a final decision within the meaning of 28 U.S.C. Sec. 1291, and is, therefore, not appealable. However, an individual defendant, like Sanders, who is entitled to raise the defense of qualified immunity, may appeal the denial of summary judgment on the grounds of qualified immunity even though the denial is not a final decision. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Salmon v. Schwarz, 948 F.2d 1131, 1135-36 (10th Cir.1991).

In contrast, the City is not entitled to qualified immunity, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980), and cannot invoke the collateral order doctrine to justify appeal of an otherwise nonappealable decision, Swint v. Chambers County Comm'n, --- U.S. ----, ----, 115 S.Ct. 1203, 1207-08, 131 L.Ed.2d 60 (1995). ⁴ Nevertheless, the City asks this Court to exercise pendent appellate jurisdiction over its appeal because it is interrelated with Sanders' permissible appeal. Such an extension of our jurisdiction is generally disfavored; nevertheless, we conclude that it is appropriate in this case because our disposition of Sanders' appeal fully resolves the issues presented in the City's appeal. ⁵

We have previously recognized the doctrine of pendent appellate jurisdiction, under which we exercise jurisdiction over an otherwise nonfinal and nonappealable lower court decision that overlaps with an appealable decision. See Snell v. Tunnell, 920 F.2d 673, 676 (10th Cir.1990), cert. denied 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991); see also Lankford v. City of Hobart, 27 F.3d 477, 478 (stating that the...