Daniels v. City of Arlington Texas

Decision Date09 April 2001
Docket NumberNo. 00-11191,00-11191
Citation246 F.3d 500
Parties(5th Cir. 2001) GEORGE DANIELS, Plaintiff-Appellant, v. CITY OF ARLINGTON, TEXAS; THERON BOWMAN, Chief of Police, Arlington, Texas, Defendants-Appellees. (Summary Calendar)
CourtU.S. Court of Appeals — Fifth Circuit

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

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant George Daniels appeals two rulings by the district court in this First Amendment employment case: the denial of his motion for partial summary judgment, and the grant of summary judgment in favor of Defendants-Appellees, the City of Arlington and its police chief (collectively, "the city"). Finding Daniels's claims to be meritless, we affirm the ruling of the district court.

I. FACTS AND PROCEEDINGS

Daniels was an Arlington police officer for thirteen years. While working in a plainclothes position, he began wearing on his shirt a small, gold cross pin ("the pin") as a symbol of his evangelical Christianity. He continued to wear the pin after he was reassigned to a uniformed position, which brought him into conflict with Arlington Police Department General Order No. 205.02(C)(2)(c) ("the no-pins policy"). The General Order, as revised in November 1997, states that: "No button, badge, medal, or similar symbol or item not listed in this General Order will be worn on the uniform shirt unless approved by the Police Chief in writing on an individual basis."

Daniels requested in writing that then-Police Chief David Kunkle make an exception to the policy and allow him to continue wearing the pin on his uniform. Kunkle declined, writing to Daniels that "I have not authorized any non-department related pins and I do not intend to do so." Daniels refused Kunkle's order to remove the pin from his uniform shirt and did not respond to the police chief's offer of accommodations, which included: (1) wearing a cross ring or bracelet instead of the pin; (2) wearing the pin under his uniform shirt or collar; or (3) transferring to a non-uniformed position, where he could continue to wear the pin on his shirt. Daniels declined these alternatives and ultimately was fired for insubordination.

Daniels sued, claiming that the no-pins policy is unconstitutional on its face, and that he had been the victim of intentional religious discrimination. The district court rejected Daniels's claims: It denied his motion for partial summary judgment on the facial challenge to the regulation and granted the city's summary judgment motion, dismissing the remainder of Daniels's claims. He timely perfected his appeal of both decisions.

II. ANALYSIS

A. Standard of Review

This case is on appeal from a denial of partial summary judgment and dismissal on summary judgment. Therefore, we review the record de novo, applying the same standard as the district court.1 A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact.2 An issue is material if its resolution could affect the outcome of the action.3 In deciding whether a fact issue has been created, the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.4

The standard for summary judgment mirrors that for judgment as a matter of law.5 Thus, the court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence.6 In reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached.7

Facial Challenge to the No-Pins Policy

Daniels asserts that Arlington Police Department General Order No. 205.02(C)(2)(c), one of many provisions regulating uniform standards for Arlington police, is an invalid prior restraint of speech protected by the First Amendment. He contends that the order is overbroad, impermissibly giving the police chief unfettered discretion to determine what expression may be displayed on an officer's uniform.

This argument is unavailing. As the district court correctly noted, "[a] police officer's uniform is not a forum for fostering public discourse or expressing one's personal beliefs." The Supreme Court has upheld appropriate restrictions on the First Amendment rights of government employees, specifically including both military and police uniform standards.8 We reached the same conclusion in a case closely analogous to this one, United States Dep't of Justice v. Federal Labor Relations Auth. ("FLRA"), in which we upheld department regulations prohibiting border patrol agents from wearing union pins on their uniforms.9

The city argues that the deferential rational review standard should be applied to the Arlington Police Department's no-pins policy, a test it surely passes.10 We need not decide whether that is the singularly applicable test, however, because the no-pins policy survives even the stricter standard for reviewing restrictions on government employee speech promulgated by the Supreme Court in Pickering v. Bd. of Educ.11 The Pickering standard balances "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as employer, in promoting the efficiency of the public services it performs through its employees."12

In FLRA, we assumed that the speech involved was a matter of public concern, then applied the Pickering balancing test and concluded that the government's interest in promoting the efficiency of the services provided by its employees outweighed the employees' interest in engaging in the protected speech.13 We found that "a law enforcement agency's anti-adornment policy is [ ] entitled to deference when weighing the government's interest against the employee's interest under the Pickering/Connick [v. Myers] First Amendment test."14

We have used two tests, both derived from Connick, to determine whether speech relates to a "legitimate public concern."15 Daniels fails both. The first, the citizen-employee test, turns on whether a public employee "'speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest.'"16 The second evaluates the content, form, and context of a given statement. None of these three factors favors Daniels's argument. The content of his speech - symbolic conveyance of his religious beliefs - is intensely personal in nature. Its form melds with the authority symbolized by the police uniform, running the risk that the city may appear to endorse Daniels's religious message.17 The final factor, context, perhaps weighs most heavily against Daniels. Although the First Amendment protects an individual's right, for example, to shout, "Fire!" while riding a surfboard on the Pacific swells, it offers no such protection to the same speech uttered in a crowded theater.18 Visibly wearing a cross pin - religious speech that receives great protection in civilian life - takes on an entirely different cast when viewed in the context of a police uniform. Although personal religious conviction - even the honestly held belief that one must announce such conviction to others - obviously is a matter of great concern to many members of the public, in this case it simply is not a matter of "public concern" as that term of art has been used in the constitutional sense.19

Because Daniels's communication of his personal religious views through the pin is not speech addressing a "legitimate public concern," the departmental policy does not offend the First Amendment. Application of the Pickering balancing test is thus precluded.20 Yet, even were we to follow the path we blazed in FLRA and assume arguendo that Daniels's speech does involve a public concern, we would reach the same result. In FLRA, we held that "it is reasonable to conclude that allowing border patrol agents to wear union pins would interfere with an appearance to the public of neutrality and impartiality, which is important to the mission of all law enforcement agencies."21

Although it is true that unions are secular and religions sectarian, the analogy between Daniels's case and FLRA is tight. As recognized in FLRA, the city through its police chief has the right to promote a disciplined, identifiable, and impartial police force by maintaining its police uniform as a symbol of neutral government authority, free from expressions of personal bent or bias. The city's interest in conveying neutral authority through that uniform far outweighs an officer's interest in wearing any non-department- related symbol on it. Daniels's facial challenge to the no-pins policy fails.

C. Grant of the City's Motion for Summary Judgment

Having reviewed de novo the legal claims Daniels asserts on appeal, we affirm the district court's decision to dismiss his case with prejudice on summary judgment.

1. First Amendment

For the reasons already discussed, the district court found that Arlington Police General Order No. 205.02(C)(2)(c) as applied to Daniels did not infringe his constitutional rights of free speech, expression, or association. The court also found that the no-pins policy is facially neutral and generally applicable, and only incidentally burdens Daniels's free exercise of his religion. Therefore, concluded the court, the rule is acceptable under the teaching of Employment Div., Dep't of Human Resources of Oregon v. Smith.22

On appeal, Daniels appears to focus on a single sentence in which the district court stated: "Plaintiff's argument that wearing a cross on his police uniform is mandated by his religion is wholly without merit." Daniels is correct in arguing that it is improper for a court to assess what activities are mandated by...

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