Melton v. City of Oklahoma City

Citation928 F.2d 920
Decision Date19 March 1991
Docket NumberNos. 85-1738,s. 85-1738
PartiesRaymon 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 and 85-1811.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Steven M. Angel, Oklahoma City, Okl., for plaintiff-appellee/cross-appellant.

Richard C. Smith (James G. Hamill, Diane Lewis, Gerald S. Rakes, and Jonathan D. Woods, with him on the briefs), Oklahoma

City, Okl., for defendants-appellants/cross-appellees

Diane Pedicord, Oklahoma City, Okl., on the brief, for amicus curiae Oklahoma Mun. League, Inc.

HOLLOWAY, Chief Judge, * and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

OPINION ON REHEARING EN BANC

JOHN P. MOORE, Circuit Judge.

Plaintiff Raymon J. Melton brought this action under 42 U.S.C. Secs. 1983 and 1985. Among the causes he asserted was a claim that he was deprived of a liberty interest by the defendants without due process when he was discharged from his job as a police officer in Oklahoma City, Oklahoma. Following a plaintiff's verdict, the defendants appealed, and a portion of the judgment was reversed. Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.1989). We granted rehearing en banc to resolve certain issues relating to plaintiff's liberty interest claim. Melton v. City of Oklahoma City, 888 F.2d 724 (10th Cir.1989). Although we denominated four issues for argument, we believe disposition of the first moots the remainder. We now conclude the trial court committed plain error in the submission of the liberty interest claim to the jury, and we reverse. The remaining issues decided by the panel stand as determined.

I.

Prior to his termination, Mr. Melton was a lieutenant in the Oklahoma City Police Department. During his tenure, he became a friend of William C. Page, a former state court judge who was indicted by a federal grand jury on felony charges. In preparation for the trial of Mr. Page, the federal prosecutor interviewed Mr. Melton. For reasons of his own, Mr. Melton surreptitiously recorded his conversation with the prosecutor and later gave the recording to counsel for Mr. Page.

The recording was used by Mr. Page's attorney as the basis for a motion to dismiss the indictment on the ground that Mr. Melton had provided the prosecutor with information to which the defense was entitled under Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The motion was denied, and Mr. Page was subsequently convicted.

Following the trial, Agent Ed Enwright, the agent in charge of the Oklahoma City office of the Federal Bureau of Investigation, advised defendant Lloyd A. Gramling, Chief of Police, of a complaint against Mr. Melton. Mr. Enwright accused Mr. Melton of improperly disclosing the details of his conversation with the federal prosecutor and of perjuring himself in an affidavit and during trial.

In response, Chief Gramling ordered a police department investigation of the accusations. On August 1, 1983, defendant Lt. Carl Smith, the head of the Internal Affairs Bureau, commenced the investigation by interviewing Mr. Enwright, who directed Lt. Smith to Agent Ron West. Lt. Smith spoke to Agent West from whom Lt. Smith obtained details of Mr. Melton's tape recorded conversation. Mr. Enwright also told Lt. Smith he did not know the details of the alleged perjury, but Lt. Smith could obtain the facts from a third agent, Mr. Fitzpatrick.

After his interviews of Agents Enwright and West, but before contacting Agent Fitzpatrick, Lt. Smith prepared and delivered to Mr. Melton a document dated August 17, 1983. According to Lt. Smith, the only purpose of the document was to "inform Lt. Melton what he had been accused of by the F.B.I. and that I was conducting, on the instructions of the Chief's office, an investigation of him on those allegations." (R. Vol. XII, 676). 1 Referring to those

allegations, Lt. Smith wrote Mr. Melton was "accused of violating the Police Code of Ethics 2 ... [and] making perjured statements both in a sworn affidavit ... and during testimony ... during the trial."

When he interviewed Agent Fitzpatrick, Lt. Smith discovered there was no substance to Agent West's claim Mr. Melton had perjured himself. Agent West had told Lt. Smith that Mr. Melton had testified during the Page trial he had turned over to the FBI certain evidence in the Page case that was not pursued by the FBI. Agent West also told Lt. Smith following a search subsequent to Mr. Melton's testimony, no formal record of Mr. Melton's evidence was found by the FBI. Agent West said, therefore, unless Mr. Melton had given the information to Agent Fitzpatrick, Mr. Melton's testimony was untrue. When Lt. Smith interviewed Agent Fitzpatrick, he stated Mr. Melton made several attempts to provide him with information, and if Mr. Melton said he furnished him with the evidence "then he probably did." (Ex. 61, Report dated September 6, 1983, at 2).

Lt. Smith then filed his report of the investigation (Ex. 61) with Chief Gramling on September 6, 1983. The report made no recommendations, reached no conclusions, but described the substance of the interviews of various witnesses.

On September 8, 1983, Mr. Melton was notified that five days later a hearing would be convened by a police department disciplinary review board (the Board) to consider the Internal Affairs investigation. On that same day, two stories which are the genesis of the plaintiff's liberty interest claim, appeared in Oklahoma City newspapers.

Prior to the appearance of the stories, a reporter from The Daily Oklahoma called defendant Lt. David McBride, the police department's public information officer, seeking confirmation of the pending investigation. (R.V. XII, 604-06). Lt. McBride testified the reporter:

read me a story that he had about information that he had received by [sic] sources that he did not reveal, that the police department was investigating R.J. Melton.

And he articulated several things that he, through his sources, had learned, that Melton was--well, I think that answers your question....

....

I didn't take notes of his interview. Okay. He was calling to tell me here's what I've got. What's the police department's position on this. The information he had, that Melton allegedly perjured himself at a--during a trial, the trial of Judge William Page.

He said that he had information that the police department was investigating Melton for tape recording an interview with the federal prosecutor.

....

And what I tried to do was minimize that as much as possible, tell them that--confirm those things that there was investigation in progress, that to my knowledge there were no immediate charges of a criminal nature being considered.

....

We corrected some information. Some of the information that [the reporter] had was far more damaging, in my mind, than the story that actually ran. It was incredible. I was quite alarmed that some of the information he had was inaccurate and was very damaging to ... Mr. Melton....

(R.V. XII, 603-06). This conversation and a "follow-up" (R.V. XII, 607) ultimately led to the publication of two stories.

It is undisputed that both stories reported the Internal Affairs investigation of Mr. Melton and the hearing that was set for that day. In addition to statements taken from Lt. McBride, the Daily Oklahoman quoted "other knowledgeable sources" who stated Mr. Melton "is being investigated,

among other things, for purportedly committing perjury during Page's trial." Nothing within the Daily Oklahoman article attributes to Lt. McBride any disclosure of the FBI perjury accusation. Indeed, the bulk of information contained in the story, including that accusation, was attributed to "sources," "informed sources," or "other knowledgeable sources." The article in the Oklahoma City Times attributed statements to Michael Gassaway, "one of Page's attorneys," and Lt. McBride. That article stated

McBride said the department's internal affairs division also investigated allegations Melton perjured himself when he testified in Page's behalf during Page's trial.

....

The internal affairs findings will go before a disciplinary review board at 9 a.m. Tuesday. The board will decide whether Melton's actions violated departmental policies or ethical cannons, McBride said.

He said the board will recommend to Chief Lloyd Gramling what action, if any, he should take against Melton.

....

McBride said the internal affairs investigation did not establish whether Melton perjured himself.

"It's not the responsibility of internal affairs to draw conclusions," McBride said. "It's their responsibility to report the facts as they find them to be from the investigation."

"The investigative report would only reflect, 'Here's what the facts were: here's what Lt. Melton said.' "

McBride said he does not know what specific parts of Melton's testimony are alleged to be perjurious. 3

To report the internal affairs review's findings on the alleged perjury would be to try and convict Melton in the press before the review board has reached a conclusion, he said. 4

Both stories contain accurate representations of Lt. McBride's responses to the questions of the reporters.

When the Board was convened, the chairperson, defendant Chief Emmett, told the members that the charge of perjury "was out, that we would not consider that under any circumstances. There will...

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