Melton v. City of Oklahoma City, s. 85-1738

Decision Date21 June 1989
Docket NumberNos. 85-1738,s. 85-1738
Citation879 F.2d 706
PartiesRICO Bus.Disp.Guide 7256 Raymon J. MELTON, Plaintiff-Appellee/Cross-Appellant, v. CITY OF OKLAHOMA CITY, a municipal corporation; Lloyd A. Gramling, Chief of Police for the City of Oklahoma City; Gerald L. Emmett, Assistant Chief of Police for the City of Oklahoma City; Marvin Maxwell, Major, Oklahoma City Police Department; William R. Chambless, Major, Oklahoma City Police Department; Carl Smith, Lieutenant, Oklahoma City Police Department; Robert Taylor, Lieutenant, Oklahoma City Police Department; David McBride, Lieutenant, Oklahoma City Police Department; and Paula Hearn, Assistant to the City Manager, Defendants-Appellants/Cross-Appellees. to 85-1742, 85-1811.
CourtU.S. Court of Appeals — Tenth Circuit

Robert D. Allen, Mun. Counselor, and Richard C. Smith, Asst. Mun. Counselor (Lawrence E. Naifeh, Diane D. Huckins, and Jonathan D. Woods, Asst. Mun. Counselors, also on the briefs), Oklahoma City, Okl., for defendants-appellants/cross-appellees.

Steven M. Angel (Carl D. Hughes and Michael Gassaway with him on the briefs), of Hughes & Nelson, Oklahoma City, Okl., for plaintiff-appellee/cross-appellant.

Before McKAY and BALDOCK, Circuit Judges, and SAFFELS, District Judge *.

McKAY, Circuit Judge.

These six appeals arise from a jury verdict and various post-trial orders entered by the United States District Court for the Western District of Oklahoma. Plaintiff, a police officer, was fired by the City of Oklahoma City. Plaintiff sued the City of Oklahoma City under 42 U.S.C. Secs. 1983, 1985 and 1988, and 18 U.S.C. Secs. 1961-68 (1982), alleging that he was deprived of liberty and property without due process of law and that he was discharged in retaliation for the exercise of his First Amendment speech rights.

I. FACTS

Raymon J. Melton, a lieutenant with nearly twenty-one years of service in Oklahoma City's police department, was fired for alleged violations of the Police Code of Ethics. Prior to Mr. Melton's termination, the Federal Bureau of Investigation ("FBI") and the United States Attorney were investigating one of Mr. Melton's longtime friends, then-judge William C. Page. In preparation for the Page trial, the federal prosecutor interviewed Mr. Melton whom he considered to be a potential defense witness. At least some of the information discussed with the federal prosecutor during that interview was gained in the course of Mr. Melton's duties as a police officer. In order to protect himself from possible misrepresentation, Mr. Melton covertly taped his interview with the assistant U.S. attorney.

During the interview, Mr. Melton gave the prosecutor what Mr. Melton believed to be exculpatory information concerning Mr. Page. This information was not released to Mr. Page's attorneys. 1 Mr. Page's lawyers subsequently contacted Mr. Melton about testifying for Mr. Page at trial. Mr. Melton discussed the content of his interview with the federal prosecutor with Mr. Page's counsel. He also offered them the recording he had made of the interview. 2

Mr. Melton and one other policeman testified for the defense at Mr. Page's trial. After the trial, in response to a complaint made by an FBI agent involved in the Page investigation, the Oklahoma City Police Department began an Internal Affairs investigation of Mr. Melton. 3 The investigation centered on two allegations: (1) that Mr. Melton had violated the Police Code of Ethics by disclosing to Mr. Page's counsel the details of a confidential discussion between himself and the federal prosecutor, and (2) that Mr. Melton had perjured himself in an affidavit and during the Page trial. These allegations and the fact of the Internal Affairs investigation were released to the press by defendant David McBride, the Police Department's Public Information Officer.

Mr. Melton received written notice that as a result of the Internal Affairs Investigation a Disciplinary Review Board would convene to hear the charges. The Review Board convened as scheduled. 4 At his arrival, the Chair informed Mr. Melton that the Board would not entertain discussion nor consider the perjury allegations; rather it would focus solely on the alleged violation of the Police Code of Ethics. After Mr. Melton testified, the Board, by a six-to-one vote, found that he had violated the Code of Ethics and recommended that he be fired. That same day with the approval of the City Manager, defendant Lloyd A. Gramling, Oklahoma City's Chief of Police, fired Mr. Melton. Lieutenant McBride confirmed Mr. Melton's dismissal to the press, 5 but did not comment on the disposition of the perjury charge. Shortly after the dismissal (and without prior notice or hearing) Mr. Melton received a letter from Chief Gramling which forbade plaintiff from representing himself in any way as a retired police officer. 6

Mr. Melton sued the City of Oklahoma City and some members of the Review Board alleging that he was deprived of property and liberty without due process of law, that he was discharged in retaliation for exercising his free speech rights, and that the City violated federal RICO provisions. He also sought punitive damages against the defendants.

Mr. Melton's RICO claim was dismissed at the close of plaintiff's evidence. The jury rendered a general verdict against the City and certain individual defendants in the amount of $1,272,000. The trial court set aside the punitive damages award against all but one of the defendants on a j.n.o.v. motion. 7 The jury found for the defendants on the section 1985 claim. The City, the individual defendants, and Mr. Melton raise a number of issues on appeal. Their respective contentions are addressed below.

II. LIABILITY DETERMINATIONS
A. Free speech claim.

On appeal, the City challenges the trial court's First Amendment instruction because it does not address the application of the First Amendment in the context of a public employee's speech. In examining a challenge to jury instructions, "we review the record as a whole, to determine whether the instructions 'state the law which governs and provided the jury with an ample understanding of the issues and the standards applicable.' " Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988) (quoting Ramsey v. Culpepper, 738 F.2d 1092, 1098 (10th Cir.1984)). We need not address whether this instruction is proper because "[t]he inquiry into the protected status of speech is one of law, not fact." Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983). See also Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987). Thus, the trial court improperly submitted to the jury the question of whether Mr. Melton's speech was constitutionally protected. However, we find that the court's improper submission of this First Amendment issue to the jury constitutes harmless error because we conclude as a matter of law that Mr. Melton's First Amendment rights were violated.

In cases which implicate the First Amendment, "an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' " Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). The court's inquiry is a multi-step process. First, the court must determine whether a public employee's speech touches upon a matter of public concern. Connick, 461 U.S. 138, 103 S.Ct. 1684. Second, if the statement satisfies the public concern inquiry, the court must then balance the interests of the employee in making the statement against the public employer's interest in the effective and efficient fulfillment of its responsibilities to the public. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Third, assuming that both previous elements have been found in favor of the plaintiff, he or she must then prove that the protected speech "was a 'motivating factor' in the detrimental employment decision." Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Fourth and finally, if plaintiff makes this showing, the burden then shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected activity. Id. While, as we have already stated, the first two steps of the process involve questions of law for the court, the two-part Mt. Healthy analysis involves questions of fact for the jury. Koch v. City of Hutchinson, 847 F.2d 1436, 1440 n. 11 (10th Cir.) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).

1. Public concern analysis.

Speech on a matter of public concern is speech which can "be fairly considered as relating to any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. at 1688. Under Connick, "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. at 1690 (footnote omitted). See also Koch v. City of Hutchinson, 847 F.2d at 1436 (listing factors courts have considered in public concern analysis).

Our examination of the record in light of these factors convinces us that Mr. Melton's speech to defense counsel and at trial touched upon a matter of public concern. Mr. Melton's speech clearly related to political, social, or other concerns of the community. However, in determining whether speech is on a matter of public concern, "it is not always enough that 'its subject matter could in [certain] circumstances, [be] the topic of a...

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