705 F.2d 1110 (9th Cir. 1983), 81-5850, McKinley v. City of Eloy

Docket Nº81-5850.
Citation705 F.2d 1110
Party NameB. Michael McKINLEY, Plaintiff-Appellee, v. CITY OF ELOY, Defendant-Appellant.
Case DateMay 09, 1983
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1110

705 F.2d 1110 (9th Cir. 1983)

B. Michael McKINLEY, Plaintiff-Appellee,

v.

CITY OF ELOY, Defendant-Appellant.

No. 81-5850.

United States Court of Appeals, Ninth Circuit.

May 9, 1983

Argued and Submitted July 8, 1982.

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[Copyrighted Material Omitted]

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Roxana C. Bacon, Jennings, Strouss & Salmon, Phoenix, Ariz., for defendant-appellant.

Richard Shannon, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshear, Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON, FERGUSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge.

Plaintiff B. Michael McKinley was a probationary employee of the Eloy, Arizona Police Department. During his probationary period, plaintiff joined a labor organization and, as its representative, publicly criticized the City's decision not to give police officers an annual raise. Plaintiff was also the subject of a citizen's complaint for use of excessive force during this probationary period. Plaintiff was subsequently fired and brought a section 1983 action against the City in federal district court. 42 U.S.C. § 1983 (Supp. IV 1980). The jury found that plaintiff's firing was the result of his exercise of first amendment rights of free speech and association. Consequently, plaintiff was awarded damages of $25,648.90 for mental and emotional distress and back pay and won reinstatement to his job.

Defendant City of Eloy appeals from the judgment and the denial of its new trial motion. Defendant makes three arguments: First, plaintiff did not state a cognizable claim under section 1983; second, the conduct of plaintiff's counsel was so prejudicial that a new trial is necessary; and third, plaintiff's superseded complaint should have been admitted as evidence. We reject each of these arguments and affirm the district court judgment.

I. Section 1983 Claims

Plaintiff contends that he was fired solely because he exercised protected first amendment rights. Defendant contends that plaintiff's dismissal was based on his behavior as a police officer. The controversy began on March 23, 1978, when plaintiff was rehired by the City as a probationary police officer. 1 Shortly thereafter plaintiff joined the police union and began to act as its representative.

Testimony at trial revealed that City officials disapproved of plaintiff's union activities. When Police Chief Mauldin reported to City Manager Fuller that plaintiff was acting as a union representative in an attempt to organize the Eloy Police Department, the City Manager stated that plaintiff would be "past history" if the report were true.

On July 24, 1978, plaintiff attended an Eloy city council meeting to protest the council's decision not to give police officers their annual raise. Eloy's Mayor, Robert Facio, told plaintiff to "shut up and sit down" and adjourned the meeting. Later that evening plaintiff was permitted to speak at a second session, but the council refused to respond to the issues he raised. The next day plaintiff was interviewed by a Phoenix television station regarding the dispute between the City of Eloy and its police officers.

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The day following the television interview, July 26, 1978, Police Chief Mauldin was summoned to a meeting with Mayor Facio and Vice-Mayor Delgado. According to trial testimony, Facio asked the chief whether any action would be taken against plaintiff for the television interview and emphasized that "this thing is getting out of hand, that guy [McKinley] is a troublemaker. We should get rid of him." The mayor then suggested that a citizen's complaint alleging excessive force, filed by Alfred Lucio on July 25, 1978, be used as a basis to fire plaintiff. Chief Mauldin pointed out that the incident allegedly giving rise to the complaint had occurred on May 15, 1978, and that it appeared that Lucio had been asked to make the complaint at such a late date as a pretext to "get something" on plaintiff. Mauldin also noted that Lucio was Mayor Facio's neighbor and that even if the complaint were true it "wouldn't look good." The mayor responded that plaintiff was making the council "look like a bunch of fools and I think we should fire him on the Lucio complaint and take our chances on being sued." Vice-Mayor Delgado agreed with Mauldin that it would be too obvious to use the Lucio complaint and stated that "when we get him we should be on solid ground."

Facio then suggested that if the Lucio complaint could not be used, the police chief might be willing to use a damaged vehicle incident to justify the firing. Mauldin responded that the Accident Review Board had already cleared plaintiff of any wrongdoing. Facio then argued that Mauldin should overrule the Board, but Mauldin declined to do so. Next, Facio and Delgado discussed a complaint made against plaintiff during his first term of employment regarding stolen clothes, but Mauldin noted that the incident had occurred long ago and that, in any event, plaintiff had been exonerated.

On August 29, 1978, City Manager Fuller called Chief Mauldin to his office to show him a note he had obtained from Lucio's physician regarding temporary numbness of one finger sustained during Lucio's arrest by plaintiff. Mauldin responded that Lucio had been handcuffed and that anyone who struggles after being handcuffed is likely to exhibit such a symptom. Fuller asked Mauldin his opinion of using the Lucio complaint as cause to fire plaintiff and Mauldin repeated his earlier objections. Fuller then handed Mauldin plaintiff's termination notice and asked him to sign it. Although Mauldin signed the notice because he believed plaintiff was going to be fired anyway, the police chief testified that even had there been merit to Lucio's complaint, he would have recommended disciplinary action short of discharge based on plaintiff's record. The termination notice gave no reason for plaintiff's firing but stated that he was being discharged without cause because he was a probationary employee.

A. First Amendment Speech

The initial question is whether the first amendment protected plaintiff against discharge for the type of speech in which he engaged. We agree that plaintiff's firing was precluded by the first amendment. It is axiomatic that "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125 (1965). See also Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 1436-1437, 16 L.Ed.2d 484; New York Times v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). As the Supreme Court has recently affirmed, speech on public issues occupies the "highest rung of the hierarchy of First Amendment values," and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U.S. ----, ----, 102 S.Ct. 3409, 3426, 73 L.Ed.2d 1215 (1982). See also Connick v. Myers, 461 U.S. ----, ----, 103 S.Ct. 1684, 1689, 75 L.Ed.2d ---- (1983); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980).

We recognize that courts have had some difficulty deciding when speech deals with an issue of "public concern." See, e.g., Connick, --- U.S. at ----, 103 S.Ct. at 1696

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(Brennan, J., dissenting); Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974) (because of the "difficulty of forcing ... judges to decide on an ad hoc basis which publications address issues of 'general or public interest,' and which do not," the constitutional privilege in defamation cases depends on whether the plaintiff is a "public figure" rather than on whether the statements deal with an "issue of public concern."); Rosebloom v. Metromedia, Inc., 403 U.S. 29, 79, 91 S.Ct. 1811, 1837, 29 L.Ed.2d 296 (1971) (Marshall, J., dissenting). See also T. Emerson, The System of Freedom of Expression, 544 (1970). However, we also realize that one of the fundamental purposes of the first amendment is to permit the public to decide for itself which issues and viewpoints merit its concern. See, e.g., Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971).

The "expressly guaranteed freedoms" of the first amendment "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. 2814, 2826, 65 L.Ed.2d 973 (1980) (plurality opinion). See also Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982). Speech by public employees may be characterized as not of "public concern" when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies. See Connick. On the other hand, speech that concerns "issues about which information is needed or appropriate to enable the members of society" to make informed decisions about the operation of their government merits the highest degree of first amendment protection. Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940) (footnote omitted).

The Supreme Court's decisions in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and, more recently, in Connick, assist us in understanding the difference between speech that concerns public affairs and speech that does not. In Pickering, the first amendment precluded the dismissal of a school teacher who was publicly critical of his employer, the Board of Education, because "free and open debate" about the operation of public schools "is vital to informed decision-making by the electorate." 391...

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