Breaux v. City of Garland

• Citation: 205 F.3d 150
• Decision Date: 23 February 2000
• Docket Number: No. 98-10638,98-10638
• Parties: (5th Cir. 2000) ALLEN BREAUX AND JOE AMBROGIO, Plaintiffs-Appellees/Appellants, v. CITY OF GARLAND, ET AL, Defendants, CITY OF GARLAND, Defendant-Appellee, TERRY HENSLEY AND RON HOLIFIELD Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 150

205 F.3d 150 (5th Cir. 2000)

ALLEN BREAUX AND JOE AMBROGIO, Plaintiffs-Appellees/Appellants, v. CITY OF GARLAND, ET AL, Defendants, CITY OF GARLAND, Defendant-Appellee TERRY HENSLEY AND RON HOLIFIELD Defendants-Appellants.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10638

February 23, 2000

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Northern District of Texas

Before JONES and WIENER, Circuit Judges, and WALTER ^*, District Judge.

EDITH H. JONES, Circuit Judge:

This case involves the First Amendment retaliation claims of two police officers against the City of Garland ("City"), its former Police Chief, and its former City Manager. Officers Allen Breaux and Joe Ambrogio (the "Plaintiffs") argue that Terry Hensley and Ron Holifield (the "individual Defendants"), and later the City, violated 42 U.S.C. 1983 by retaliating against the Plaintiffs for making public allegations of corruption in the Garland Police Department.

The jury found the individual Defendants liable, and even after a large remittitur was accepted by the Plaintiffs, the district court entered judgment exceeding $8 million, plus attorneys' fees, for the Plaintiffs. Both sides have appealed. We conclude that the judgment is fatally flawed because the Plaintiffs failed to prove that official retaliation against them was sufficiently serious to constitute a constitutional injury. No other reversible error has been raised.

I. FACTUAL BACKGROUND

This case is factually complex, as evidenced by the parties' continuing disagreement about what happened in the City of Garland and the Garland Police Department between 1992 and 1994. The following review of the facts is guided by the jury verdict favoring Breaux and Ambrogio. In the beginning of 1992, the City hired Holifield as its City Manager. The Garland City Council instructed Holifield to hire a new police chief from outside the department. Holifield ultimately hired Hensley, who started working for the City in April 1992. During the summer of 1992, Hensley contacted the FBI's Dallas office to discuss possible land acquisitions and flips made by members of the City administration.

In October 1992, Hensley met FBI Agent Largent, the supervisor of the white collar crime squad for public corruption, to discuss the land deals over lunch. Two other Garland police officers, Jody Lay ("Lay") and Larry Wilson ("Wilson"), were present at this meeting. During the conversation, it became clear that the FBI was beginning to investigate the possible involvement of some current and former council members in two City of Garland real estate transactions. According to Wilson, Hensley conducted the meeting and told the FBI agent who and what Hensley wanted investigated. The subjects included former Garland mayor Billy Earl Tomlinson ("Tomlinson"); former City Councilman James Ratliff ("Ratliff"); and Garland Councilman Vernon Gaston ("Gaston"). ¹ Lay continued to assist the FBI until late 1992 when Officer Joe Harn ("Harn") took over for Lay. The FBI initiated a second investigation concerning possible Garland public corruption in relation to a landfill deal between the City and Waste Management, Inc., which was allegedly brokered by Ratliff and Gaston.

During the summer of 1992, Hensley put Lay in charge of the Intelligence Unit of the Department. Hensley told Lay that he was concerned about the current direction of the Unit as well as the performance of the two officers in the Unit. Hensley was particularly concerned with Breaux, who Hensley thought devoted too much of his time to Asian gangs. Lay apparently shared these concerns; in a September 11, 1992, memo to Hensley, Lay requested that Breaux be transferred out of the Intelligence Unit.

Breaux was then a 20-year veteran officer. Officer Breaux testified that he asked to be transferred back to patrol duty after Lay informed him, during a truck ride in the country, that Hensley and Lay "were redirectionalizing the Intelligence Unit to start doing political investigations for Charlie Hinton, the city attorney, and members of the city council." ² Breaux was unwilling to engage in "political investigations" instituted by the new police chief. Although Breaux contemporaneously reported his conversation with Lay to Lieutenant David Swavey, he did not otherwise pursue the matter.

After being transferred out of the Intelligence Unit, Breaux remained on patrol duty until late 1993. In November 1993, Breaux received a poor performance review from his supervisor and was assigned to front desk duty at the Department.³

In the Spring of 1994, Officer Breaux, newly-elected vice-president of the Garland Police Officers Association ("GPOA"), told Detective Ambrogio, the GPOA president, about the previous attempt to recruit him for political investigations. Shortly thereafter, the GPOA conducted a survey of all Department employees to identify morale problems and to determine how to overcome any such problems. Upon learning of the survey, Chief Hensley became very upset and upbraided Ambrogio about it.

In March 1994, Holifield met with the GPOA Board to discuss the survey. During this meeting, Breaux first revealed to the City Manager the alleged illegal political investigations being run by Chief Hensley. Breaux also told Holifield that the station was wired so that a former police chief could monitor any telephone conversation in the building. The GPOA Board members were concerned that someone might try to monitor their calls after the results of the survey were published. After Breaux mentioned the alleged investigations, Holifield immediately ordered that any ongoing investigations were to remain confidential. Holifield also expressed his concern with GPOA tactics and allegedly threatened to "destroy" the GPOA if it acted "politically" with respect to these allegations or the survey results. But Holifield offered to work with the GPOA if the GPOA would keep politics out of the Department. With the apparent approval of Breaux and Ambrogio, Holifield agreed to investigate the GPOA allegations. Toward this end, Holifield reported the allegations to Hensley.

At this point, the retaliation began. Hensley informed Lay of the allegations of politically motivated investigations, and Hensley brought an Internal Affairs charge, investigation I/A 94-12, against Breaux for making false statements -- about the investigations.

Soon thereafter, Holifield discovered that film was missing from a secret camera, which had been installed in his office to catch suspected intruders. Realizing that police officers would recognize the hidden camera and knowing that the GPOA Board had been in his office for the March 1994 meeting, Holifield told Hensley about the missing film. Hensley initiated Internal Affairs investigation I/A 94-13 against all the GPOA Board members to determine if they had stolen the film. ⁴

Detective Ambrogio, on the advice of a lawyer from the Combined Law Enforcement Association of Texas ("CLEAT"), then held a press conference, where he, the lawyer, and a City Councilman who was one of the targets of the alleged investigations, made expansive allegations about illegal political investigations being conducted by Hensley and Holifield. ⁵ Relying on statements made by Breaux during the meeting in Holifield's office, Ambrogio and the others also alleged that the Department was conducting electronic surveillance of its employees since the phones in the Department were bugged. The CLEAT attorney, Bob Hasty, went so far as to inquire whether there is "in fact, a Gestapo type of ... secret intelligence organization that is doing political investigations of police officers." ⁶ Hasty further propagated Breaux's allegations in letters to law enforcement authorities in the state. These public statements led to another Internal Affairs investigation, I/A 94-14, which focusedon Ambrogio's possible violation of several General Orders of the police department. Investigators recommended that the charges in 94-14 be sustained and the Chain of Command Board agreed.

As part of the investigations, Breaux and Ambrogio were both questioned on several occasions, and Breaux was required to take a polygraph administered by the Department. The Internal Affairs investigations concluded that Breaux and Ambrogio had lied in making their allegations of corruption. Hensley publicly posted the results of the investigations in the Department and made the results available to several local media outlets, leading everyone in the department to know the Plaintiffs were "in trouble." Breaux was also required to undergo a psychiatric exam following comments he made to another officer while en route to the Department polygraph test.⁷

Following the various interviews, Internal Affairs investigations, and polygraphs, Breaux was placed on paid administrative leave. In May 1994, Hensley called each Plaintiff into his office separately, telling each that he could keep his job if he accepted a short suspension and signed a letter, the terms of which were to be mutually agreed to, retracting all of his allegations. Both men refused the agreement offered by Hensley. Hensley took no further action with respect to Breaux and Ambrogio.

Later in May, Ratliff was elected mayor of Garland. An ally of those whom Hensley had been investigating, Ratliff caused both Chief Hensley and City Manager Holifield to resign. In the few months following Hensley's resignation, the new Acting Police Chief Barnett "non-sustained" the Internal Affairs charges against Breaux and Ambrogio. Nevertheless, after returning from his paid administrative leave in July 1994, Breaux was assigned to the Telephone Response Unit ("TRU"). Breaux contends that Lay was a friend of Barnett's and that Barnett thought Breaux should be punished with this assignment. (According to the City, Breaux was assigned to the TRU, a position similar to the one he had at the front desk, in...