Angle v. Dow

• Decision Date: 01 June 1993
• Docket Number: Civ. A. No. 92-0344-AH-C.
• Citation: 822 F. Supp. 1530
• Parties: John ANGLE and Clyde Freeman, Plaintiffs, v. Mike DOW, Mayor, and Harold Johnson, Chief of Police for the City of Mobile, Defendants.
• Court: U.S. District Court — Southern District of Alabama

822 F. Supp. 1530

John ANGLE and Clyde Freeman, Plaintiffs, v. Mike DOW, Mayor, and Harold Johnson, Chief of Police for the City of Mobile, Defendants.

Civ. A. No. 92-0344-AH-C.

United States District Court, S.D. Alabama, S.D.

June 1, 1993.

COPYRIGHT MATERIAL OMITTED

R. Jeffrey Perloff, Reich, Friedman, Perloff and Ross, Mobile, AL, for plaintiffs.

John R. Lockett, J. Barry Abston, Cherry, Givens, Tarver, Peters, Lockett and Diaz, P.C., Mobile, AL, for defendants.

K.W. Michael Chambers, McRight, Jackson, Dorman, Myrick and Moore, Mobile, AL, for Chief Johnson.

OPINION & ORDER

HOWARD, Chief Judge.

This cause is before the Court on Defendants' motions for summary judgment on the merits, and to dismiss or in the alternative for summary judgment based on qualified immunity. Docs. 34, 36, 39. Count one of Plaintiffs' second amended complaint charges that Defendants Michael C. Dow, Mayor of Mobile, and Mobile Police Chief Harold Johnson terminated police officer John Angle in retaliation for his exercise of his rights to freedom of speech on a matter of public concern. After typing a memorandum critical of a plainclothes unit in the Mobile Police Department, known as "the Chief Squad," Angle allegedly was charged with violation of subsection 1/14 of procedural general order 55 (hereinafter "subsection 1/14"), and terminated following a predisciplinary hearing. Count two alleges that the Defendants' actions deprived Plaintiff Angle of his right to freedom of speech under the First Amendment and deprived him of his property without due process of law. Count three states that Defendants discharged Plaintiff Angle in violation of his rights under the First Amendment. Count four alleges that Defendants ordered officer Rose Brunson, a witness subpoenaed by Angle to testify before the Mobile County Personnel Board, not to appear at the Plaintiff Angle's Personnel Board hearing on January 20, 1992, and that such act constituted the tort of outrage and a deprivation of property without due process of law. Count five alleges that Plaintiff Clyde Freeman has been unconstitutionally sanctioned for past violations of subsection 1/14 in that Defendant Chief Johnson has instigated and interfered with internal affairs investigations of Freeman in retaliation for his exercise of free speech on matters of public concern. Count five also states that subsection 1/14 is unconstitutionally over-broad, void for vagueness, and a prior restraint of Plaintiffs' right to free speech. Count six of Plaintiffs' third amended complaint alleges that Plaintiff Freeman "followed the chain of command" to obtain permission to address the media on matters of public concern, after which he was told to itemize each such matter, and that on November 2, 1992 he was denied permission to comment on such matters in violation of his rights under the First Amendment.¹ Plaintiffs seek a declaratory judgment that subsection 1/14 is unconstitutional, as well as injunctions declaring Angle's termination unconstitutional, ordering his reinstatement, and restraining Defendants and their employees, agents and servants from enforcing subsection 1/14. The pretrial document has clarified the redundance and overlap in Plaintiffs' amended complaints: Angle's First Amendment claims in counts one through three are really one claim for retaliatory discharge, and Angle's due process claims in counts two and four are now one due process claim. For the reasons that follow, Defendants' motions for summary judgment are GRANTED IN PART AND DENIED IN PART.

FINDINGS OF FACT

On June 8, 1991, around 3:30 P.M., Plaintiff John Angle typed a memorandum² on an intra-departmental police form as a joke after an incident where he and another officer stopped two female undercover officers following him while he was on routine patrol. Angle typed the memorandum on the typewriter at the Third/North precinct at 608 Phillips Drive, Mobile. The memo was addressed to "ALL INTERESTED PERSONS" and concerned the "CHIEF'S SQUAD (PIMPS)." The memorandum described a black female driver, Regina Dennard, and gave her date of birth and social security number. The memorandum also described the other passenger as Rose Brunson, a white female. The memorandum twice mentioned a black MR 2, the police vehicle driven by the two women, and also stated the tag number on the MR 2. The memorandum also stated that "THESE SUBJECTS WERE CAUGHT YET A SECOND TIME AT THE REAR OF THE TACO BELL ON GOVERNMENT STREET APPARENTLY WATCHING TO SEE IF THE RANGER UNITS ATE THEIR TACOS IN A TIMELY MANNER." After typing the memo and talking and joking about it with some other police officers, Angle decided the joke had gone far enough. He therefore crushed the memo into a ball and threw it into a nearby trash can. Angle did not intend to circulate the memorandum other than to his friend Rose Brunson, one of the undercover officers, or her husband. At the time he typed the memo, Angle "wanted to bring to light ... the situation with the Chiefs squad" and "felt that the situation with the squad needed to be addressed."³ According to Angle, he did not type the letter "as part of the duty of a police officer." Thereafter, the memo was removed from the garbage and posted by unknown means in the training section at the First/South Precinct in Mobile on June 12, 1991.

On June 18, 1991 Angle made and signed a statement to Corporal Ted Bilbo of the internal affairs section regarding the memorandum. Angle received a predisciplinary action notice on July 16, 1991, charging him with violation of eleven different Police Department rules and regulations, including conduct unbecoming an employee in the public service (Personnel Board Rule 14.2(c)) and criticism (Procedural General Order 55, subsection 1/14). The notice stated that "by writing this letter, you compromised the undercover officers' future safety and drug investigations, act sic which indicates total irresponsibility on your part." On July 19, 1991 Deputy Chief Ronald Wilhelm held a predisciplinary hearing with Angle. On September 6, 1991 Mayor Dow wrote Angle a letter adopting Deputy Chief Wilhelm's decision to terminate him over the memorandum incident. Angle appealed this decision to the Mobile County Personnel Board on September 23, 1991.

The Personnel Board conducted a hearing on the matter on January 30, 1992, at which Claude Boone, Esquire, represented Angle. The Board affirmed Angle's dismissal on February 4, 1992, noting that the critical charge brought against Angle was conduct unbecoming an employee in the public service. The Board dismissed some of the charges against Angle, but in the critical part of its decision found that Angle played recklessly with the lives of his fellow officers, comparing his actions to playing Russian Roulette with the lives of his fellow officers. The Board found that the "drafting and distribution of that memo placed the lives of two undercover officers in unnecessary danger and that obviously is not a joking matter." Angle's attorney Claude Boone subpoenaed officer Rose Brunson to testify at the hearing on Angle's behalf, but she was ordered "by one of her superiors to ignore the subpoena and not to attend the hearing."⁴ On September 1, 1992 the Circuit Court of Mobile County approved and affirmed the Personnel Board's decision. Angle did not pursue any further appeals of his termination by Mayor Dow.

Plaintiff Clyde Freeman is President of the Mobile County Law Enforcement Association. Around March, 1991 Freeman and Terry Hicks, the former president of the Policeman's Benevolent Association (PBA), presented to Mayor Dow a letter of complaints on behalf of the PBA and the Mobile County Law Enforcement Association. According to Freeman, Mayor Dow took no action on the letter and stated "do whatever you need to do." Freeman then forwarded the March, 1991 letter containing these complaints to City Councilwoman Jane Baxter, one of three members of the Public Safety Committee of the Mobile City Council. The letter is not in the record, and the only reference in the record to its content concerns "an officer Max Mahathy reporting another officer coming to him with a stolen gun wanting to sell it."⁵ According to Freeman, in reprisal, internal affairs "came to his Mahathy's house and made an illegal search."⁶

After Freeman and Hicks forwarded the March, 1991 letter to the Public Safety Committee, Mayor Dow summoned Freeman to his office, and according to Freeman, "threatened me with my job in the presence of Mr. Lockett, the City Attorney." According to Freeman, he has consistently been harassed by Chief Johnson since that time.⁷

In the fall of 1991 an intradepartmental survey on Chief Johnson was conducted and sent out to police officers, and the results were tabulated by an independent accounting firm. The survey is not part of the record, and there is no evidence either of the content of the survey or of any participation by Freeman in the survey.

Freeman also contends that Lieutenant Mike Roland, at the direction of Chief Johnson, ordered him not to criticize Chief Johnson or Mayor Dow. Roland also allegedly stated it was "a direct order ... passed down through the chain of command." According to Freeman, Roland stated that he was acting pursuant to the PGO's (Procedural General Orders). A Sergeant Homer Floore was also present according to Freeman. Both Roland and Floore have submitted affidavits denying this incident ever took place.

On October 27, 1992 Freeman attempted to comply with subsection 1/14 and presented to Deputy Chief Wilhelm a list of nine (9) items he wished to discuss at a press conference.⁸ According to Freeman, he met with Wilhelm on or about October 30, 1992, and Wilhelm told him he had "discussed the matter with Chief Johnson and it would not be a good idea." Freeman understood this to be a direct order from Chief Johnson not to attend the press conference, and he did not do so. Chief Johnson, in an...