Leonard v. City of Columbus

• Decision Date: 09 September 1983
• Docket Number: No. 82-8158.,82-8158.
• Citation: 705 F.2d 1299
• Parties: Robert LEONARD, et al., Plaintiffs-Appellants, v. The CITY OF COLUMBUS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

705 F.2d 1299

Robert LEONARD, et al., Plaintiffs-Appellants, v. The CITY OF COLUMBUS, et al., Defendants-Appellees.

No. 82-8158.

United States Court of Appeals, Eleventh Circuit.

May 23, 1983.

Rehearing and Rehearing Denied September 9, 1983.

ACLU Foundation, Neil Bradley, Atlanta, Ga., Joel M. Gora, Brooklyn, N.Y., ACLU Foundation, E. Richard Larson, New York City, for plaintiffs-appellants.

E.H. Polleys, Jr., Asst. City Atty., Columbus, Ga., for defendants-appellees.

Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 9, 1983.

KRAVITCH, Circuit Judge:

Appellants are former policemen of the City of Columbus, dismissed by the City for events occurring in May, 1971. In this action challenging their dismissal they assert numerous grounds for relief under the United States Constitution. The district court found merit in none of the grounds asserted. We conclude differently, holding appellants' dismissal violated their first amendment right of free speech; consequently, we reverse.

In early 1971 black members of the City of Columbus Police Department (the "Department") formed the Afro-American Patrolmen's League ("the League") in order to present effectively grievances of the black officers. At that time there was a growing tension among black officers, who perceived that the Department was treating blacks in a discriminatory manner. Specific complaints involved discriminatory hiring and promotion of blacks, discriminatory assignment and disciplinary practices, and alleged police brutality toward members of the black community. Although several black police officers had brought complaints before the Board of Public Safety, they believed no progress was made.

On March 26, 1971, the League's Executive Director, Officer Robert Leonard, issued a press release in which the League criticized Department practices. Following issuance of the release, on April 5, 1971, the League held a press conference in City Commission chambers. Subsequent to these events members of the League met with the Chief of the Department, Chief McGuffey. League members believed that neither the meeting with Chief McGuffey, nor another meeting held with the Mayor of Columbus, resulted in progress toward resolving League grievances. At no time following these events were the plaintiffs informed they were in violation of any Department regulations.

On May 29, 1971, Officer John Brooks telephoned the Department and notified the desk sergeant he would be unable to report to work due to illness. Testimony at trial indicated that the normal Department practice in such event was for the desk sergeant to arrange rescheduling of the court cases in which the officer was to testify. Instead, when Brooks failed to appear in court he was charged with contempt and two officers were dispatched to his home to arrest him. The Department then charged him with conduct unbecoming an officer and feigning sickness to avoid duty, and suspended Brooks indefinitely from the force.

One of the League's chief complaints against the Department was the disproportionately severe punishment meted out to black officers for disciplinary violations. Not surprisingly, Officer Brooks' arrest on contempt charges, undeniably an event out of the ordinary, caused great consternation among black officers. The black officers attempted to meet with and discuss the suspension with Chief McGuffey. No meeting was held, however, when the Chief insisted on hand-picking the officers he would see, rather than discussing the matter with League officials, as favored by the black officers. After attempts to pursue the matter with Department officials failed, black officers began to picket the police station on May 29 and 30. At all times the demonstrations were peaceful and orderly.¹ Department officials did not inform plaintiffs that the picketing was unlawful, or could result in their dismissal.

On May 30 black officers and various civic leaders met to discuss the increasingly tense situation. The evidence is unclear as to what, if anything, was agreed upon by those who participated in the meeting. League members testified the civic leaders and intermediaries suggested a "cooling-off" period during which the black officers would cease picketing and continue performing their duties, in return for which no charges would be brought for previous picketing. Contrary testimony suggests the civic leaders attended in an "unofficial" capacity as "ordinary citizens" and were unauthorized to promise anything. Any notion of a "cooling-off" period soon was dispelled: later that day Officer Leonard and Officer Clark, another League official, were summoned to Department headquarters where Deputy Chief Brown read a list of charges against them. Brown refused to provide a written copy of the charges, and it was unclear if, and when, the officers were to be suspended. Officer Leonard therefore returned to his beat.

Angered by what League members perceived to be a violation of the "cooling-off" period, the League voted to resume picketing the next day. They also agreed to participate in the "flag incident," which gave rise to this suit. On the morning of May 31 seven officers, six of whom are appellants in this action, began to picket the Department. All officers were off-duty, but in uniform. Appellants carried signs with captions such as "WE DON'T WANT TO BE POLICEBOYS; WE WANT TO BE POLICEMEN" and "HAVE YOU EVER HEARD OF POLICE BEING ARRESTED FOR CONTEMPT OF COURT."

Later, after members of the press arrived, the picketing officers assisted one another in removing an American flag emblem from the sleeve of each uniform shirt. The flags were removed carefully, thread by thread, with a razor. At no time was the flag treated with disrespect; to the contrary, Officer Leonard, speaking for the others present, explained the high respect the officers had for the American flag and the ideals it represented, particularly liberty and equal justice for all. The officers, many of whom had served in Viet Nam, did not believe the Department had extended them just treatment consistent with these principles; accordingly, they considered it inappropriate to wear the flag on their uniform. After Deputy Chief Brown refused Leonard's attempts to present the flag emblems to him, Leonard placed the emblems in his pocket. The incident was at all times peaceful, unaccompanied by disorder, violence or boisterousness. Photographs of the incident portray the scene as peaceful.

At the time the "flag incident" was occurring an emergency conference was held at which Chief McGuffey, Joseph W. Sargis, the Director of Public Safety, and City of Columbus Mayor Allen agreed that discharge of the officers was in order. Although Chief McGuffey indicated the primary reason for the firing was the flag incident, Sargis characterized it as a "crescendo" of the activity of past days, referring specifically to prior League activities. The dismissal letter, printed below in its entirety, refers specifically, and solely, to removal of the flag patch.

Shortly after the flag incident appellants were ordered to report to the Department major's office, where they were informed of their dismissal from the force and given dismissal letters:

Effective this date, May 31, 1971, you are discharged from the Columbus Police Department for violation of Section 39, paragraphs "G" and "R" of the General Rules of Conduct of the Police Manual, which states:

(G) Conduct unbecoming an officer which might be detrimental to the service

(R) Any other act or omission contrary to good order and discipline of the department

in that you did publicly remove the American flag from the Columbus Police Uniform while picketing in front of Police Headquarters on May 31, 1971.

The American Flag was made an official part of the Columbus Police Uniform by a unanimous vote of the City Commission on August 18, 1969.

Very truly yours B.F. McGuffey Chief of Police

Director Sargis then held a press conference at which he notified the press of the dismissal and included as reasons for dismissal several grounds not mentioned in the dismissal letter from Chief McGuffey. Sargis accused appellants of making "baseless allegations of unlawful conduct, racism, and discrimination" against the Department without first bringing those complaints through "channels." His statement concluded "today they picketed the Columbus City Police Department and removed the American Flag from their uniforms. These men did not enlist in the Police Department, they do not have to wear that uniform or flag again; they are dismissed."²

On June 4 and 9, 1971, complaining of the procedurally unlawful dismissals, counsel for appellants wrote defendants stating appellants wished to preserve their right to a hearing before the Police Hearing Board. The procedure attendant appellants' dismissal apparently was contrary to every promulgated City of Columbus rule, including the city charter; Ordinance No. 71-1, which established a Police Hearing Board to perform the function usurped by McGuffey, Sargis, and Allen; and the Police Manual, which specifically requires concurrence of the Board of Public Safety (whose successor in interest was the Police Hearing Board).³ By letter of June 10, Deputy Chief Brown informed appellants of their "right to appeal" their dismissal before the Board. In subsequent letters Brown scheduled the hearings, which were postponed once on request of appellants' counsel. The Brown letters of June 24 and 25 set forth additional charges which the Board would consider.

At the hearings appellants were represented by counsel and were given an opportunity to offer witnesses and evidence on their behalf. It was not until the day of the hearing, however, that counsel received the Department's memorandum and packet of material detailing the evidence against each witness, which evidence included a transcript of the press conference held by...