Briggs v. North Muskegon Police Dept.

• Decision Date: 05 May 1983
• Docket Number: No. G80-96 CA6.,G80-96 CA6.
• Citation: 563 F. Supp. 585
• Parties: Richard BRIGGS, Plaintiff, v. NORTH MUSKEGON POLICE DEPARTMENT, City of North Muskegon and City Commissioners and Police Chief, Defendants.
• Court: U.S. District Court — Western District of Michigan

563 F. Supp. 585

Richard BRIGGS, Plaintiff, v. NORTH MUSKEGON POLICE DEPARTMENT, City of North Muskegon and City Commissioners and Police Chief, Defendants.

No. G80-96 CA6.

United States District Court, W.D. Michigan, S.D.

May 5, 1983.

Jeffrey T. Ross, Logan & Ross, Grand Rapids, Mich., for plaintiff.

Harry J. Knudsen, Knudsen, Wasiura & Associates, P.C., Muskegon, Mich., for defendant.

OPINION

BENJAMIN F. GIBSON, District Judge.

This is an action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the allegedly unlawful dismissal of plaintiff from his job as a police officer with the defendant police department. The parties are in agreement that the reason for the dismissal was that plaintiff, a married man, was cohabiting with a married woman not his wife. Plaintiff claims that the dismissal violated his associational and privacy rights protected by the United States Constitution, and that he was treated differently from other individuals who were similarly situated. This matter was tried before the Court, and this Opinion shall constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52.

Plaintiff commenced his employment as a part-time police officer in 1969, and it is undisputed that he performed his duties satisfactorily up to the time of his suspension on February 15, 1977. The events leading up to his suspension began with his separation from his wife in January, 1977.¹ Plaintiff and Cynthia Secrest moved in February, 1977 into an apartment located about one block from the main business center of North Muskegon. The city is a small residential community located on a peninsula containing about one and a half square miles with a population of about 4,000. Plaintiff admits that their cohabitation relationship included the sharing of sexual intimacies. It was plaintiff himself who brought his new living arrangements to the attention of Police Chief Harold Mirkle. The City Council then directed the City Superintendent to order Police Chief Mirkle to place plaintiff on suspension. On February 15, 1977 plaintiff was suspended, in the words of the Superintendent's memo to the Chief, "until such time it is decided his actions are not unbecoming a police officer for the City of North Muskegon."

On July 1, 1977, plaintiff was informed that he was terminated retroactive to the date of suspension and that he would be afforded a hearing. Plaintiff was duly notified of a hearing before the City Council which was conducted on August 29, 1977. At the hearing, plaintiff admitted that he was still cohabiting with Ms. Secrest within the city and was informed by the City Attorney that there was a state statute relating to illegal cohabitation.² Plaintiff presented a prepared statement expressing his opinion that such statute was antiquated and unenforceable. Plaintiff also informed the City Council that he intended to continue cohabiting with Ms. Secrest. On September 19, 1977, the Council voted to deny plaintiff's request for reinstatement.

Plaintiff contends that defendants' acts have intruded upon his constitutionally-guaranteed rights of privacy and association. He further contends that such intrusion is unjustified because defendants have failed to demonstrate even a rational relationship between plaintiff's private, off-duty living arrangements and the performance of his duties. Plaintiff also asserts that he was treated differently than another individual who allegedly was engaging in the same course of conduct. Defendants argue that the dismissal was justified because plaintiff's off-duty conduct adversely affected or had the potential to adversely affect his performance on the job, and because local law enforcement officers can be required as a condition of their employment to conform their conduct to the requirements of the law.

A constitutionally guaranteed right to free association has been inferred by the Supreme Court from the First Amendment protection of speech and assembly, NAACP v. Alabama, 357 U.S. 449, 460-63, 78 S.Ct. 1163, 1170-72, 2 L.Ed.2d 1488 (1958), and a right of privacy has been found in several provisions of the Constitution, Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 1681-82, 14 L.Ed.2d 510 (1965). Where these rights come into conflict with interests of state and local governments the legitimate rights of the parties must be reconciled in a manner that is consistent with the Constitution. When the state acts as an employer, it may not without substantial justification condition employment on the relinquishment of constitutional rights, see Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), but it has greater latitude in restricting the activities of its employees than of its citizens in general. Kelley v. Johnson, 425 U.S. 238, 245, 96 S.Ct. 1440, 1444, 47 L.Ed.2d 708 (1976). Whether the private activities of a public employee can constitute valid grounds for dismissal requires careful consideration of both the interests of the individual and the interests of the government.³

The right of privacy upon which plaintiff relies was the basis in Griswold for holding unconstitutional a statute prohibiting the use of contraceptives. A number of specific guarantees in the Bill of Rights were found to have penumbras that create a zone of privacy which encompasses the marital relationship. The result was extended to unmarried persons in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) on equal protection grounds, and the Court went on to declare:

It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

405 U.S. at 453, 92 S.Ct. at 1038 (emphasis in original). The constitutional right of privacy includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977). Although the outer limits of this right have not been established, "it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and child rearing and education.'" Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2015-16, 52 L.Ed.2d 675 (1977) (citations omitted).

These cases have formed the foundation for arguments that the constitutional right to privacy extends to sexual conduct in intimate relationships between unmarried individuals:

The argument, then, is this: Marriage exists to facilitate the expression of emotional and sexual intimacy. That intimacy is so fundamental to individual liberty that it demands constitutional protection. Nothing is different about the psychological and emotional needs of unmarried couples which would justify denying them the same protection.

Note, Fornication, Cohabitation and the Constitution, 77 Mich.L.Rev. 252, 291 (1978). Some courts have specifically held that the right of privacy protects sexual freedom. E.g., State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977) (fornication statute violates right of privacy). It has also been held that the off duty-private sexual conduct of public employees is protected by the constitutional right of privacy. E.g., Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D. Pa.1979). Many commentators have argued that the constitutional right of privacy extends to sexual freedom for the unmarried, e.g., Developments in the Law—The Constitution and the Family, 93 Harv.L.Rev. 1156, 1289-1296 (1980), but one recent analysis contends that the Court has given no support to such a notion. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy—Balancing the Individual and Social Interests, 81 Mich.L.Rev. 463, 517-544 (1983).

The similarity between the interests of an unmarried couple in choosing to live together, and the interests in personal privacy and freedom of association previously recognized by the Court as fundamental, was noted by Justice Marshall in his dissent to the denial of certiorari in Hollenbaugh v. Carnegie Free Library, 439 U.S. 1052, 99 S.Ct. 734, 58 L.Ed.2d 713 (1978). See Note, Constitutional Law—A Missed Opportunity for Clarification of the Privacy Right, 4 Western New England Law Review 171 (1981). In particular, J. Marshall referred to the plurality opinion in Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977), holding that "when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." See also Karst, The Freedom of Intimate Association, 89 Yale Law Journal 624 (1980).

The Supreme Court has observed that it "has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating private consensual sexual behavior among adults." Carey, 431 U.S. at 694 n. 17, 97 S.Ct. at 2021 n. 17. Justice Rehnquist took issue with that statement, believing that the facial constitutional validity of criminal statutes prohibiting certain consensual acts was established in Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Carey, 431 U.S. at 718 n. 2, 97 S.Ct. at 2033 n. 2. In Doe the Court summarily affirmed a three-judge federal court's refusal to declare Virginia's sodomy statut...