877 F.2d 364 (5th Cir. 1989), 87-2783, Moore v. City of Kilgore, Tex.

Docket Nº:87-2783.
Citation:877 F.2d 364
Party Name:Gary D. MOORE, Plaintiff-Appellant, v. The CITY OF KILGORE, TEXAS, Defendant-Appellee.
Case Date:July 18, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 364

877 F.2d 364 (5th Cir. 1989)

Gary D. MOORE, Plaintiff-Appellant,

v.

The CITY OF KILGORE, TEXAS, Defendant-Appellee.

No. 87-2783.

United States Court of Appeals, Fifth Circuit

July 18, 1989

Page 365

Elizabeth K. Julian, Michael M. Daniel, Dallas, Tex., for plaintiff-appellant.

Mike A. Hatchell, Tracy Crawford, Tyler, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Page 366

Before GOLDBERG, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:

Appellant Gary Moore brought this 42 U.S.C. Sec. 1983 suit against the City of Kilgore to remedy a violation of Moore's First Amendment rights. This per curiam opinion explains the panel's holdings.

Part I of Judge Goldberg's opinion concerns the application of Kilgore Fire Department Rule and Regulation 4.2A(40) to Moore's speech. We unanimously reverse and remand for further proceedings on this issue. Judge Goldberg's opinion constitutes the reasoning of the court on this issue.

There is a second issue in this case concerning the facial validity of the Kilgore Rule. An opinion by Judge Higginbotham, in which Judge Davis joins, constitutes the panel's holding affirming the District Court's judgment that Moore's facial attack upon the rule fails. Part II of Judge Goldberg's opinion constitutes a dissent from the panel's affirmance of the district court's judgment concerning the facial validity of the Rule.

GOLDBERG, Circuit Judge:

Fiery words may both ignite public discourse and set aflame an employer's ire. The City of Kilgore, appellee-defendant, ("City") maintains that we should smother the words of Gary Moore, appellant-plaintiff ("Moore"). Moore invites us to hold that his words are a matter of public concern which weigh in his favor under the Pickering/Connick 1 balancing test. Moore also seeks to overturn the City's Fire Department Speech Regulation, Article 4.2A(40), as facially unconstitutional.

Firefighter Gary Moore works for the City of Kilgore Fire Department. He spoke to the news media on December 17, 1985, concerning a fire which had occurred the day before his interview. The City disciplined Moore for his speech. Moore brought a 42 U.S.C. Sec. 1983 action for damages, declaratory and injunctive relief against the City of Kilgore. After a bench trial, the court entered judgment for the City. Moore appeals on three grounds: (1) that the district court erred when it found that some of Moore's statements are not "protected speech;" (2) that the district court erred in its application of the Pickering/Connick balancing test to one statement which the court found to be a matter of public concern; and (3) that the district court erred in determining that Article 4.2A(40) ("Rule") of the Rules and Regulations of the Kilgore Fire Department was facially constitutional. We agree with Moore on his first two objections; we reverse the district court and remand for further proceedings consistent with this opinion.

FACTS--LAY OF THE TERRAIN

In 1985, the City of Kilgore experienced serious financial difficulties. With oil profits dwindling, the City had to cut city services. The City Commissioners and the City Manager, Ron Cox, determined that they would have to lay off forty employees by October 1, 1985. The fire department was the hardest hit with eleven projected lay-offs for a total reduction of fifteen positions (four vacancies were left unfilled).

The layoff of firefighters did not occur behind closed doors. At the trial before the district court, Moore introduced into evidence numerous newspaper articles which document the controversy surrounding the staffing of the fire department. For example, one article on October 6, 1985 that appeared in the Tyler-Courier-Times-Telegraph began, "Controversy is smoldering here between city officials and firemen--targets of recent city budget cutbacks. The key spokespersons in the battle of words are Gary Moore, president of an organized firefighters' 'union,' and Ron Cox, Kilgore city manager." In another newspaper article which ran on October 2, 1985, the article quotes a statement that

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the firefighters published: "It is difficult not to be emotional when we are talking about the lives and property of citizens whom we have sworn to protect."

Moore began his employment as a Kilgore firefighter in 1980. He is a third generation firefighter, following in the footsteps of his grandfather, father, and uncle. He has been president of the Kilgore Professional Firefighters Association, Local 2996, since July, 1985, and serves as the spokesperson for the firefighters. The Association is not recognized as a collective bargaining agent for employees of the Kilgore Fire Department, but is recognized in the Kilgore area as the voice of the firefighters. Ron Cox, the City Manager, acted as the spokesperson for the City during the latter half of 1985.

In the early morning hours of December 26, 1985, the Kilgore Fire Department responded to a house fire. Although a suspected result of arson, the fighting of the fire was essentially routine. The fire, however, produced tragic results. One firefighter, Hawthorne, died of an apparent heart attack while fighting the fire, and a second, Captain Jackson, fell from a ladder, sustaining serious injuries requiring hospitalization. Media representatives approached Moore for comments concerning the tragedy. Moore initially demurred. He went to see the City Manager, Cox, for two purposes: (1) to assist in expediting the paperwork to secure benefits for the survivors of the deceased fireman; and (2) to inform Cox of the inquiry from the press and coordinate his response concerning the death with the City's plans.

The fire chief was in Cox's office when Moore arrived on December 26, 1985. The two had been discussing various aspects of the fire. Moore was welcome; the meeting was cordial. Moore stated the reasons for his visit. As to the reporters' inquiries, Cox suggested that Moore limit his response to an expression of sympathy for the family of his deceased colleague.

The following morning, December 27, 1985, the City held a press conference, after which the media representatives sought comment from Moore. Moore responded with a message of condolence for the family. Not surprisingly, the press persisted with questions about the fire reflecting back to the ongoing debate regarding the staffing decisions. Moore answered direct questions concerning the fire, firefighting techniques, and the duties of firefighters in fighting blazes. Specifically, the newspaper article (which was attached to the disciplinary memorandum discussed below that Cox eventually gave to Moore) stated:

Gary Moore, president of the Kilgore Professional Fire Fighters Association, to which Hawthorne belonged, commented: "B.J. was a very nice man and a good firefighter. Firefighters get to be pretty close. We're just sickened over something like this."

Moore said he was "not saying that B.J. wouldn't have had a heart attack" if the fire had not occurred, but contended the incident pointed out that "we don't have enough manpower."

He added that the fire department sent No. 1 engine--a two-man company--and No. 3 engine--a three-man company, and then called in firefighters from Overton, Sabine and Liberty City, the Kilgore Rescue Unit and four or five off-duty firemen.

"It's common practice to have a 'butt man' to hold the ladder. Jackson didn't have that." Moore said, "The other man had to stay with the engine."

"I just want to say, 'I told you so.' " Moore added referring to his earlier charges that the fire department is understaffed following a lay-off of 15 firemen in October.

City officials declined to respond to Moore's charges, other than pointing out that ice was on the ladder and concrete, making them slippery.

"We're dealing with a shortage of manpower. It may not have made a difference in B.J. Hawthorne's heart attack. We really don't know. But there was no doubt it contributed to Capt. Jackson's injury." Capt. Jackson had fallen from a ladder. The latter statement referred to the absence of a "buttman" to hold Jackson's ladder as he

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climbed, a fundamental practice, according to Moore.

Publication of these comments spurred Cox to order Moore to report to his office on December 31, 1985. When Moore arrived, Cox had a prepared memorandum imposing disciplinary sanctions, including: (1) suspension without pay for 30 days; (2) demotion from the status of driver to firefighter; (3) probation for six months; and (4) prohibition from visiting any fire station for any reason during the suspension without the prior approval of the fire chief. In the disciplinary memorandum, Cox wrote:

Both Chief Duckwork and I directed you to say as little as possible and not discuss the events surrounding the fire because of the delicate nature of the circumstances with the potential of arson involved, and the death of a fireman during the fire. Specifically, I told you to be very, very careful with what you said. I recommended you limit your comments to indicate your regrets over Lt. Hawthorne's death on behalf of the Association.

At the close of the conversation, you told me that you would say no more than what we had discussed in this conversation to the media and I agreed. You also indicated, with our agreement, that you would be at the press conference to be held Friday morning, December 27, in order to express the regrets of the Association regarding Mr. Hawthorne. You attended that press conference.

On Friday, December 27, the Kilgore News Herald carried the newspaper article, a copy of which is attached to this memo, that quotes you discussing several details of the fire itself. On Friday evening of that...

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