Murphy v. City of Flagler Beach

• Decision Date: 28 May 1985
• Docket Number: Nos. 83-3273,83-3743,s. 83-3273
• Citation: 761 F.2d 622
• Parties: , 18 Fed. R. Evid. Serv. 47 Gary MURPHY, Plaintiff-Appellant, Cross-Appellee, v. CITY OF FLAGLER BEACH, and Daniel H. Bennett, Defendants-Appellees, Cross-Appellants. Gary MURPHY, Plaintiff-Appellant, v. FLAGLER BEACH, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 622

761 F.2d 622

2 Fed.R.Serv.3d 268, 18 Fed. R. Evid. Serv. 47

Gary MURPHY, Plaintiff-Appellant, Cross-Appellee, v. CITY OF FLAGLER BEACH, and Daniel H. Bennett,

Defendants-Appellees, Cross-Appellants.

Gary MURPHY, Plaintiff-Appellant, v. FLAGLER BEACH, etc., et al., Defendants-Appellees.

Nos. 83-3273, 83-3743.

United States Court of Appeals Eleventh Circuit.

May 28, 1985.

Joseph T. Garlovsky, Nathan G. Dinitz, Daytona Beach, Fla., for plaintiff-appellant, cross-appellee.

C. Allen Watts, Daytona Beach, Fla., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before RONEY and CLARK, Circuit Judges, and SIMPSON, Senior Circuit Judge.

SIMPSON, Senior Circuit Judge:

Gary Murphy began working as a police officer for the City of Flagler Beach, Florida, ("the City") in July 1977. In 1979, he received a letter from Police Chief Daniel H. Bennett, dated January 18, which informed him that he would be fired if he did not voluntarily resign. An attachment to the letter alleged three specific reasons for Bennett's decision: (1) Murphy had violated Florida law by recklessly displaying a firearm in arresting one McSorely on January 3, 1979; (2) on November 22, 1978, Murphy left the city unprotected for one hour by leaving Flagler Beach, while he was the sole officer on duty, to answer an ambulance call in Flagler County; and, (3) he had refused two requests to supplement his report in a burglary investigation "Case # 791-32 (Prosser Case)". The rest of the attachment contained a more generalized statement of additional charges, including complaints from outside sources, and described a procedure for Murphy to follow:

I have received numerous reports of your attitude with the Flagler County Sheriffs Office. I have talked with them in reference to this and they are reluctant to work with you because they are afraid that you are going to seriously injury someone. Therefore they would be involved in a Civil suit or facing criminal charges.

I have also checked your reliability and creditability with the County Court and the State Attorney's office. I have been informed when your name appears on a case, they are reluctant to prosecute.

You question almost every decision that I make and when I explain my reasons to you, you go to the other officers and make some smart comments about how you are going to take me to a higher authority if I dont do things your way.

I feel that you have corrupted the morale in this department and the working relationship with the Flagler County Sheriff's Office.

Therefore all doubt must be resolved in favor of this department and I am asking for your resignation effective immediately. If you refuse to resign you will be terminated immediately. You will receive all pay of vacation holiday's that are due you.

If you desire to be terminated then you may request in writing to me by 5:00 pm on 1/23/79 to have a hearing before the City Commission. If you desire a hearing, then it will have to be on the agenda with-in 30 days of your termination.

(Record Vol. 1, pp 10-11) (Spelling, punctuation and grammar as in original).

Murphy appeared in Bennett's office at the police station, declined to resign, and requested a hearing. Bennett informed Murphy that he was not entitled to a hearing on internal affairs and fired him while surreptiously recording the meeting on audio tape. Murphy then retained an attorney who mailed Bennett a request for a witness list, a more particular statement of the charges, and a hearing before the Complaint Review Board (review hearing) under Florida's Law Enforcement Officers' Bill of Rights, ("Police Bill of Rights"). ¹ Fla.Stat. Murphy then filed suit in district court against Bennett and the city under 42 U.S.C. Sec. 1983, the United States Constitution and the Police Bill of Rights. The complaint alleged that Bennett's secret recording was a violation of Florida's Security of Communications Act, Fla.Stat. Secs. 934.03 et seq. ("Communications Act"); that Murphy's dismissal was unjustified and in bad faith; that the process by which he was dismissed violated rights guaranteed by the Police Bill of Rights; that the city was vicariously liable for Bennett's actions; and that the above actions by defendants were committed under color of state law and deprived him of a property interest in his employment which was protected by the due process clause of the Fourteenth Amendment ("Sec. 1983 claim"). See 42 U.S.C. Sec. 1983.

Secs. 112.531 et seq. (1979). When Bennett failed to reply, the lawyer mailed an identical request to the City Attorney who refused to comply. The City Attorney suggested that Murphy could be heard at the next City Commission meeting. The attorney called the City Clerk and placed Murphy's hearing on the agenda for the next meeting, scheduled for March 1, 1979. Immediately before the meeting, Bennett gave Murphy's attorney a stack of documents, including additional charges, that he intended to introduce against Murphy. The commissioners initially announced that only Bennett, Murphy and Murphy's attorney would be allowed to speak, notwithstanding that Murphy had brought many witnesses. After some discussion, a few witnesses were allowed to speak and the remainder were asked to stand up and be recognized as Murphy's supporters. No witnesses were ever placed under oath. The commission took no vote or other action on Murphy's termination. However, during the meeting, Bennett produced the secret tape recording of the meeting at which Murphy was fired but made no use of the tape.

The case was tried before a jury. The court entered a directed verdict for $1.00 in nominal damages on Murphy's claim that the defendants had violated statutory due process rights by their failure to grant him a Complaint Review Board Hearing. The court directed a verdict for the defendants on claims for punitive damages and injury to Murphy's reputation. The remaining issues were submitted to the jury on special interrogatories. They found that Bennett had acted in good faith, and with just cause in firing Murphy, but that he had violated the Communications Act in making the secret recording. The jury awarded one dollar against the City, as required by the directed verdict, for the violations of the Police Bill of Rights and one thousand and one dollars as compensatory damages against the City on instructions that Murphy would be able to recover the fees that his attorney charged him for attending the city commission meeting. The jury also returned separate one hundred dollar statutory damage awards against Bennett and the City for the Communications Act violation, see Fla.Stat. Sec. 734.10 (1979). The district judge entered final judgment on the verdict.

After denying Murphy's motions for a new trial, the court heard, and, in a second final judgment, granted in part, his requests for an award of attorney's fees under 42 U.S.C. Sec. 1988 and for taxation of costs. Murphy filed separate appeals of the initial judgment on the jury verdict, Case No. 83-3273, and the subsequent judgment awarding fees and costs, Case In Case No. 83-3273 Murphy argues that the trial judge erred in refusing to allow him to introduce evidence that Bennett frequently left the city for unacceptable reasons during his duty hours; prejudiced the trial by making inappropriate comments in the presence of the jury and improperly instructed the jury that they could consider testimony that Chief Bennett consulted with his attorney in firing Murphy as evidence of good faith, in the absence of evidence to support the instruction. The City and Bennett have filed a cross appeal in which they argue that the district court erred in directing a verdict that Murphy had a right to a Complaint Review Board hearing under the Police Bill of Rights; in failing to direct a verdict that plaintiff had failed to prove vicarious liability for Bennett's surreptitious recording; in failing to direct a verdict for the defense on the Sec. 1983 claims, aggravating the error by giving vague, incomplete and otherwise erroneous instructions on plaintiff's right to due process which were tainted by the language the court employed in directing the verdict on the state (Police Bill of Rights) claim.

No. 83-3743. This court consolidated the two appeals on February 1, 1984.

Murphy's appeal in Case No. 83-3743 argues that the district judge erred in failing to award him $993.00 of his claimed costs to cover expenditures for depositions, witness and mileage fees because the witnesses deposed and subpoenaed were never called at trial.

CASE NO. 83-3273

The first point that Murphy argues is that the judge erred in refusing to allow him to elicit testimony that police officers regularly left the City during duty hours without prior permission or later complaints from Chief Bennett, and that Bennett himself would often drive to a beach outside the city limits to view nude sunbathers and would invite other officers on duty to accompany him on those trips. The appellees argue that the point has not been preserved for appeal because Murphy made no contemporaneous offer of proof and the substance of the evidence sought was not revealed by the context of the questions asked. We disagree with the appellees; they have stated a half truth.

Murphy made an initial attempt to elicit the testimony in his adverse examination of the assistant police chief. The defense objected on grounds of relevancy and the court sustained the objection before the substance of the evidence sought could be revealed by a leading question or other device. ² Murphy made no offer of proof at that time. However, a conference was later held on evidentiary questions. At that conference, Murphy made an offer of proof in anticipation of eliciting the evidence from Bennett or other witnesses he would call who had knowledge of the facts. The court again sustained the objection. The purposes of...