Cox v. City of Chattanooga

• Decision Date: 18 July 1973
• Citation: 516 S.W.2d 94,95 S.Ct. 58
• Parties: Raymond COX, Appellee, v. CITY OF CHATTANOOGA et al., Appellants.
• Court: Tennessee Court of Appeals

Page 94

516 S.W.2d 94

Raymond COX, Appellee, v. CITY OF CHATTANOOGA et al., Appellants.

Court of Appeals of Tennessee, Eastern Section.

July 18, 1973.

Certiorari Denied by Supreme Court Feb. 19, 1974.

Certiorari Denied by U.S. Supreme Court Oct. 31, 1974. See 95 S.Ct. 58.

Eugene N. Collins and Randall L. Nelson, Chattanooga, for appellants.

Jerry H. Summers, Chattanooga, for appellee.

OPINION

PARROTT, Judge.

The Board of Commissioners of the City of Chattanooga has appealed from the chancellor's order reinstating fire captain Raymond Cox whose dismissal for insubordination and conduct unbecoming the firefighting service was unanimously affirmed by the Board.

The Chattanooga Police Department was conducting an investigation of a murder which occurred in that city on March 11, 1972. Harry Brooks Daniels, a suspect of the murder, was arrested in Atlanta, Georgia. On his person was found an address book which contained the name of Raymond Cox, his home telephone number and the two telephone numbers of the precinct station where Captain Cox worked. Two city detectives went to the Cox home and requested he accompany them to the Chattanooga Police Department for questioning. Captain Cox voluntarily rode to the headquarters where the police presented the following form which Captain Cox refused to sign:

YOUR CONSTITUTIONAL RIGHTS

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you talk to a lawyer.

WAIVER OF RIGHTS

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure, force or coercion of any kind has been used against me.

Signed_ _

(refused)

Commissioner of the Fire and Police Departments of the City of Chattanooga, Gene Roberts, came into the headquarters and informed Captain Cox that if he did not cooperate with the officers in this investigation, that if the city attorney approved, he (Commissioner Roberts) would fire him.

Captain Cox requested to see an attorney. Upon his attorney's arrival at the headquarters and after a private discussion between Cox and his attorney, Cox again refused to answer any questions or look at any of the pictures offered by the investigating officers.

On the next day Commissioner Roberts sent a letter to Captain Cox which stated the following:

'This is to advise you that effective at the end of your working day this date your employment with the Chattanooga Fire Department is terminated.

'You are being dismissed for insubordination, for conduct unbecoming a member of the fire-fighting service and for refusing to cooperate to any extent in an official investigation of the Chattanooga Police Department.'

Captain Cox asked for and was granted a hearing before the full Board of Commissioners of the City of Chattanooga. This hearing was held on June 25, 1972, and by unanimous vote the Board affirmed the dismissal of Captain Cox.

Thereafter Captain Cox, by petition for certiorari, asked for a review of the Board's action by the chancery court. In the chancery hearing, after hearing proof on a motion for summary judgment, the chancellor entered a decree holding Captain Cox had a right to remain silent under the Fifth Amendment and his discharge was a violation of his constitutional rights. The chancellor's decree ordered Captain Cox reinstated with full pay.

From this decree the City has appealed asking for a reversal of the chancellor's order.

There are numerous cases involving municipal and public employees' dismissals under the threat of loss of employment. Slochower v. Board of Higher Education of the City of New York 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, Garrity v. State of New Jersey, 385 U.S. 493, 17 L.Ed.2d 562, 87 S.Ct. 616, Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, Uniformed Sanitation Men Assn. v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234.

As we all know, the Fifth Amendment to the United States Constitution provides that no one shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property without the due process of law.

Our United States Supreme Court has held this constitutional right to be one of the most valuable prerogatives of a citizen and there shall not be imputed any sinister meaning by one's exercise of the right. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819.

Also our Supreme Court has held that the free choice to speak out or remain silent is extended to all. In Garrity v. State of New Jersey, supra, the Court said:

'. . . we conclude...