791 F.2d 736 (9th Cir. 1986), 84-1882, Fugate v. Phoenix Civil Service Bd.

Docket Nº:84-1882.
Citation:791 F.2d 736
Party Name:Clifford D. FUGATE and Robert Dennis Barnhart, Plaintiffs-Appellants, v. PHOENIX CIVIL SERVICE BOARD; Carolyn Carr Smith, Jane Clark, Harold Klaiber, and Snead Parker, members, individually and in official capacities; Lawrence Wetzel, Chief of Police for the City of Phoenix Police Department; and City of Phoenix, a municipal corporation, Defendants
Case Date:June 10, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 736

791 F.2d 736 (9th Cir. 1986)

Clifford D. FUGATE and Robert Dennis Barnhart, Plaintiffs-Appellants,



Clark, Harold Klaiber, and Snead Parker, members,

individually and in official capacities; Lawrence Wetzel,

Chief of Police for the City of Phoenix Police Department;

and City of Phoenix, a municipal corporation, Defendants-Appellees.

No. 84-1882.

United States Court of Appeals, Ninth Circuit

June 10, 1986

Argued and Submitted June 11, 1985.

Page 737

Robert E. Jones, Jr., Napier & Jones, Phoenix, Ariz., for plaintiffs-appellants.

Peter G. Kline, Jones, Skelton & Hochuli, Phoenix, Ariz., for defendants-appellees.

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

Before: GOODWIN, WALLACE, and NELSON, Circuit Judges.

NELSON, Circuit Judge.

Fugate and Barnhart appeal from a summary judgment entered in favor of the Phoenix Civil Service Board in their action for back pay and injunctive relief filed pursuant to 42 U.S.C. Sec. 1983 (1982). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982), and we affirm.



Appellants Fugate and Barnhart are vice officers with the City of Phoenix Police Department. In 1978, a prostitute revealed to Appellants' superiors that sexual relationships had existed between herself and Officer Fugate, and between another prostitute and Officer Barnhart. The department investigated and verified the prostitute's story, and learned, among other things: (1) that the relationships had involved intimate contact while on-duty; (2) that the prostitute involved with Officer Barnhart was accepting city money from him as a paid informant; and (3) that both relationships were carried on openly and publicly, and were well known among prostitutes and in the County Attorney's office. Based on this investigation, the City discharged the officers for violating a general order of the department.

The officers appealed to the Phoenix Civil Service Board, which reinstated the officers but did not order back pay for the

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period during which the officers had been suspended. The officers then filed an action for backpay and injunctive relief, asserting violations of their constitutional rights.

The City initially defended the action on the ground that the officers violated a statute prohibiting adultery. The officers challenged both the applicability and constitutionality of the statute. The district court entered summary judgment for the City. We remanded the case for the district court to determine: (1) whether the officers had committed "adultery" within the meaning of Ariz.Rev.Stat.Ann. Sec. 13-1408 (1978); and (2) if not, whether the Civil Service Board would have reached the same result for other specifications of misconduct. See Andrade v. City of Phoenix, 692 F.2d 557, 559-60 (9th Cir.1982) (per curiam).

On remand, the district court held that the City had not proven that the officers violated the adultery statute. The Civil Service Board then concluded that, even absent the statutory violation, the undisputed facts would have led the Board to impose the same suspension and loss of pay on the officers for "conduct unbecoming an officer and contrary to the general orders of the police department." The district court granted summary judgment to the Civil Service Board. We are again presented with the officers' claim. 1



The officers claim that the City violated their constitutional right of privacy by punishing them for their private sexual activities. The City claims that its actions were justified, under Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) because they arose out of the City's method of organizing its police force. We agree with the City.

  1. The Officers' Privacy Claim.

    We note at the outset that the courts are divided concerning the extent of police officers' constitutional privacy rights. Compare Briggs v. North Muskegon Police Department, 563 F.Supp. 585 (W.D.Mich.1983) (officer's dismissal for living with a married woman not his wife violated his constitutional right of privacy), aff'd, 746 F.2d 1475 (6th Cir.1984) with Wilson v. Swing, 463 F.Supp. 555, 563 (M.D.N.C.1978) (officer's adulterous conduct not protected by constitutional right of association or analogous right of privacy). In order to place the question in proper perspective, we begin by reviewing the origin and development of the constitutional right of privacy.

    1. The Right of Privacy

      The Constitution does not expressly guarantee the right of privacy. Nevertheless, the Supreme Court has held that the right is implicitly guaranteed by the Constitution as one aspect of the "liberty" protected by the Due Process clause of the fourteenth amendment, see Carey v. Population Services International, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977), or as one of the "penumbral" rights formed by "emanations" from the express guarantees of the Bill of Rights, Griswold v. Connecticut, 381 U.S. 479, 484-85, 85 S.Ct. 1678, 1681-82, 14 L.Ed.2d 510 (1965).

      The right of privacy is closely connected with the integrity and sanctity of the family. Many of the Court's early decisions implicating the right of privacy arose in the context of husband-wife and parent-child relationships. The fundamental rights associated with family relationships, first articulated as privacy rights in Griswold, had their origins in cases such as Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct.

      Page 739

      1110, 86 L.Ed. 1655 (1942). In Meyer and Pierce, the Court established the rights of parents to direct the upbringing of their children and to place their children in private schools. See Meyer, 262 U.S. at 399-403, 43 S.Ct. at 626-628; Pierce, 268 U.S. at 534-35, 45 S.Ct. at 573-74. In Skinner, which invalidated legislation mandating the sterilization of habitual criminals, the Court held that the right to procreate within marriage was one of "the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." 316 U.S. at 541, 62 S.Ct. at 1113; see also Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978) ("if appellee's right to procreate means anything at all it must imply some right to enter [into marriage,] the only relationship in which the State of Wisconsin allows sexual relations legally to take place") (footnote omitted).

      In Griswold, the first of the modern Supreme Court decisions defining the right of privacy, the Court struck down legislation that interfered with the rights of married persons to use contraceptives. The Court grounded its opinion in the sanctity of marriage:

      Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

      We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

      381 U.S. at 485-86, 85 S.Ct. at 1682.

      Since Griswold, the Court has continued to stress the constitutional protection of marital and family integrity. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 1937-38, 52 L.Ed.2d 531 (1977) (plurality opinion) (zoning ordinance intruding on choice of family living arrangements held unconstitutional because "the Constitution protects the sanctity of the family"); 2 Zablocki, 434 U.S. at 386, 98 S.Ct. at 681 (statute prohibiting marriage of individuals whose support obligations were in arrears, or whose children were likely to become public...

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