Heislup v. Town of Colonial Beach, Va., s. 84-2143

Decision Date06 November 1986
Docket NumberNos. 84-2143,85-1128,s. 84-2143
Citation813 F.2d 401
PartiesUnpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Julian D. HEISLUP, Sr. and Linda L. Dixon, Appellees, v. TOWN OF COLONIAL BEACH, VIRGINIA; Bernard George Denson, individually and in official capacity as member of Council of Town of Colonial Beach; Gloria T. Fenwick, individually and in official capacity as member of Council of Town of Colonial Beach; Edna C. Sydnor, individually and in official capacity as member of Council of Town of Colonial Beach; Thomas B. Rogers, individually and in official capacity as member of Council of Town of Colonial Beach; John A. Anderson, individually and in official capacity as Chief of Police of Town of Colonial Beach; Marty J. Perry, individually and in official capacity as police officer with Town of Colonial Beach and Leroy H. Bernard, Appellants, and Josef W. Dunn, individually and in official capacity as Town Manager of the Town of Colonial Beach, Defendant. Conrad B. MATTOX, Jr. and S. Keith Barker, Appellants, Julian D. Heislup, Sr. and Linda L. Dixon, Appellants, v. TOWN OF COLONIAL BEACH, VIRGINIA; Bernard George Denson, individually and in his official capacity as member of Council of Town of Colonial Beach; Gloria T. Fenwick, individually and in her official capacity as member of Council of Town of Colonial Beach; Edna C. Syndor, individually and in her official capacity as member of Council of Town of Colonial Beach; Thomas B. Rogers, individually and in his official capacity as member of Council of Town of Colonial Beach; John A. Anderson, individually and in his official capacity as Chief of Police of Town of Colonial Beach; Josef W. Dunn, individually and in his official capacity as Town Manager of the Town of Colonial Beach; Marty J. Perry, individually and in his official capacity as pol
CourtU.S. Court of Appeals — Fourth Circuit

Before RUSSELL, WIDENER and WILKINSON, Circuit Judges.

Joseph E. Blackburn, Jr. (White, Blackburn & Conte, P.C., on brief), for appellants.

S. Keith Barker (Conrad B. Mattox, Jr., on brief), for appellees.

PER CURIAM:

These are consolidated section 1983 actions by two municipal employees to recover damages against their employer and certain officials thereof for a disciplinary suspension of three days without pay for an alleged exercise by the plaintiffs of their free speech rights. 1 The plaintiffs in the actions are a police officer (Heislup) and a police dispatcher (Dixon) in the Police Department of the Town of Colonial Beach, a small Virginia municipality with a population of about 2500 persons. It is their contention that Heislup "was a witness to an unlawful beating of a juvenile" by another police officer (Sergeant Perry) in the Department, that Dixon heard Perry give "incriminating statements" in connection with such beating, and that, as a direct consequence of their public statement of what they had seen or heard, they were disciplined by the Town Council by being suspended "for a period of three days without pay for violation of not having properly conformed to the police code of ethics in the Town of Colonial Beach." The defendants are the Town of Colonial Beach, the members of the Town Council who voted in favor of the suspension, (Rogers, Fenwick, Denson, and Sydnor), the City Manager (Dunn), the Chief of Police (Anderson), Perry, (the Sergeant of the Police force) and a private attorney (Barnard).

After a measure of discovery, the cause proceeded to trial. At the conclusion of the evidence, all the defendants moved jointly for a directed verdict. The basis of the motion was that the plaintiffs had not established as a matter of law a violation of theirconstitutionally protected rights of free speech. The trial judge denied the motion. In addition, the defendants Dunn, Anderson, and Barnard filed individual motions for a directed verdict in favor of each on the ground that there was no evidence of their involvement in the allegedly unconstitutional action. The motion of the defendant Dunn was not opposed by the plaintiffs and that motion was granted. The individual motions of the defendants Anderson and Barnard were denied. The cause was thereupon submitted to a jury against all the defendants other than the defendant Dunn. From a judgment entered upon a favorable verdict for the plaintiffs, the defendants have appealed. We reverse, finding that there was no violation of anyconstitutionally protected right of the plaintiffs as a matter of law by the defendants. Since such ruling disposes of the case, we do not consider the other grounds of appeal raised by the defendants, including particularly their right to a new trial for improper jury argument of counsel and for error in admission of evidence.

I

An understanding of the issues in the controversy requires a summary of events leading up to the actual circumstances of plaintiffs' suspension, which is the core of plaintiffs' claims. These events began on Sunday evening, May 31, 1981, on the boardwalk in the Town of Colonial Beach with some fighting between a group of white youths and a group of black youths. The leading participants in the encounter seem to have been a youth Winfield, among the whites and a youth Peyton among the blacks. Winfield, said to be a minor of 15 years, had admittedly been drinking and had been involved in earlier fighting on the boardwalk with Peyton on that evening. It was of interest that, under the testimony, Winfield had assaulted a police officer and had beaten his mother only a week earlier. So far as the record shows, Peyton was not drinking at the time and there is no suggestion that he had any prior record of disorderly conduct.

As a result of the disorder created on the boardwalk, the police department was called and Sergeant Perry and Officer Heislup responded separately to the call. Sergeant Perry arrived at the boardwalk first and encountered Winfield. The latter told Perry that the blacks had "beaten him up," hit him on the head and thrown rocks at him. He was, according to Perry, unquestionably in an angry mood, anxious to renew the fight. Perry sought to dissuade Winfield from any further fighting. Winfield responded that he wanted to "find" the guy who had beaten him, indicating an intention to continue the confrontation. As Perry was attempting to reason with him, Winfield turned and began walking away from Perry toward the group of blacks, among which was Peyton. Other youths joined Winfield and Peyton. Those joining Winfield were white, Peyton's group was black. Taunts were being exchanged between the two groups. In the meantime Heislup had arrived and was attempting to hold back the black youths. Up to this point, Perry's testimony is undisputed in the record. There is some discrepancy in the testimony of Perry and Heislup thereafter. Heislup said that at this time "someone in the crowd hollered to the Winfield boy. He turned to look, and as he did, Sergeant Perry put his left arm up on the boy's shoulders and struck him in the head with his night stick, knocking him to the ground." Perry's testimony, on the other hand, was that Winfield shouted an obscenity at the black youths. At that moment he "didn't know what was going to happen [in the black-white confrontation]. So when Winfield reached up at me, I hit him, hit him just like that quick, and immediately turned around to the blacks and told them to break it up and disperse. And they did." Too there is in the record a newspaper account published on July 9, 1981, which purports to give a summarized account of the incident as given the reporter by the participant Peyton: Winfield "emerged from the back of The Gameroom, and began walking towards him (meaning Peyton), saying 'I want to fight you.' Then, said Peyton, the officer struck the youth...."

It seems to have been agreed both by the plaintiffs and the defendants that police officers or employees who had participated in or had knowledge of any wrongdoing on the part of any other policeman while on duty were required to make a prompt report of what they had seen or of what they had reliably heard. Both plaintiffs recognized their responsibility under this Rule to report their accounts of the incident on May 31 and both claimed they had complied with this obligation in their complaints. Thus in his complaint the plaintiff Heislup alleged that "pursuant to the rules and regulations of the Town Police Department [he] informed members in the chain of command of the police department who were responsible for disciplining of [sic] Perry for the unlawful beating, of the May 30 [sic] 1981 events...." (Italics added). Similarly, the plaintiff Dixon alleged in her complaint that she, "pursuant to the rules and regulations of the Town Police Department, informed members in the chain of command of the Town Police Department who were responsible for disciplining Perry of [sic] the incriminating statements made by Perry concerning the unlawful beating...." (Italics added). It is established by the record that the "chain of command" in the Department led to the Chief of Police, the defendant Anderson. It is, however, equally established that neither the plaintiff Heislup nor the plaintiff Dixon had under-taken voluntarily to inform affirmatively "members in the chain of command of the Town Police Department" either of their observations or of what they may have heard about any "unlawful beating" administered by Sergeant Perry on the boardwalk on May 31, 1981. 2 Heislup did give to the Chief of Police the day after the incident and later did give to an officer of the Department who was officially investigating the incident his...

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