Dible v. City of Chandler

• Decision Date: 05 September 2007
• Docket Number: No. 05-16577.,05-16577.
• Citation: 502 F.3d 1040
• Parties: Ronald DIBLE; Megan Dible, husband and wife, Plaintiffs-Appellants, v. CITY OF CHANDLER, a municipality in the State of Arizona; Chandler Police Department, a law enforcement agency of the City of Chandler; Bobby Joe Harris, Chandler Police Chief and husband; Judy Harris, wife, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

502 F.3d 1040

Ronald DIBLE; Megan Dible, husband and wife, Plaintiffs-Appellants, v. CITY OF CHANDLER, a municipality in the State of Arizona; Chandler Police Department, a law enforcement agency of the City of Chandler; Bobby Joe Harris, Chandler Police Chief and husband; Judy Harris, wife, Defendants-Appellees.

No. 05-16577.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2007.

Filed September 5, 2007.

Keith M. Knowlton, Keith M. Knowlton, L.L.C., Mesa, AZ, for the plaintiffs-appellants.

Katherine E. Baker, Green & Baker, Scottsdale, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; James A. Teilborg, District Judge, Presiding. D.C. No. CV-03-00249-JAT.

Before: MARY M. SCHROEDER, Chief Judge, WILLIAM C. CANBY, JR., and FERDINAND F. FERNANDEZ, Circuit Judges.

Opinion By Judge FERNANDEZ; Concurrence By Judge CANBY.

FERNANDEZ, Circuit Judge:

Ronald and Megan Dible appeal from the district court's grant of summary judgment against them in their action against the City of Chandler, Arizona, the Chandler Police Department, and the Chandler Police Chief Bobby Joe Harris (collectively the City). Principally, the Dibles assert that Ronald Dible was a police officer whose rights under the First Amendment to the United States Constitution were violated when he was terminated for participating in (performing in, recording and purveying) a sexually explicit website with his wife. We affirm.

BACKGROUND

In January of 2002, the Chandler Police Department learned that one of its officers, Ronald Dible, was running a website featuring sexually explicit photographs and videos of his wife. After initially placing Ronald Dible on administrative leave and conducting an internal investigation into his involvement with the website, the City terminated his employment as a police officer.

Ronald Dible and his wife Megan Dible began running the website in September of 2000, after Megan Dible signed a contract with CDM Networks, which operated the website. The Dibles then posted pictures of Megan Dible on the website, under the pseudonym "Katelynn." Those photographs portrayed Megan Dible in various sexual poses and activities with Ronald Dible, another woman, and inanimate objects. The Dibles also posted, among other things, a videotape of Megan Dible masturbating that had been filmed by Ronald Dible. The Dibles did not intend to express any kind of message or engage in social or political commentary through the material they posted on their website. They participated in those activities to make money; it was as simple as that.

The website operated as follows: Any computer user with internet capability could access the website's home page without charge. The home page featured partially nude pictures of Megan Dible in order to entice customers. If the user wanted to view more pictures of Megan Dible, a fee was required, but before the pictures could be reviewed, the user had to enter into a purported contract with CDM Networks. Once the user accepted the terms of the contract and paid the fee, he was free to view the website's sexually explicit photographs and videos.

The Dibles also offered a CD-ROM for sale on the website. Like the website itself, the CD-ROM featured photographs of Megan Dible having sex with Ronald Dible, other women, and inanimate objects. Although the photographs on the website and the CD-ROM generally did not show Ronald Dible's face, one of the photographs did.

The Dibles also promoted their website by attending "bar-meets." The purpose of the bar-meets was to have fans of the website meet Megan Dible, although Ronald Dible also attended. The bar-meets, which took place at local bars, were open to the public, and attendees were free to take photographs. They did, and sometimes posted those on their own websites. Although some attendees knew Megan Dible only as Katelynn, others knew her true identity. At those bar-meets, both Megan Dible and Ronald Dible posed in sexually suggestive ways with each other and with other people, some of whom were partially nude. The Dibles' photographs from the bar-meets were compiled on a CD-ROM and were then sold through their website.

Rightly believing that his participation in the website would violate police department policies, Ronald Dible did not inform any department officials about it.¹ He did, however, tell a few people about it, including a fellow police officer, whom he urged to start his own website. The officer eventually did.

Sometime in the later part of 2001, rumors about the Dibles' website began circulating among members of the department, and eventually the news of the website filtered up to department officials. Upon learning about it, the police chief on January 25, 2002, ordered Ronald Dible to cease all activity with the website and placed him on administrative leave. The chief then opened an investigation into Ronald Dible's involvement with the website. The investigators questioned Ronald Dible about it, and, in response, he provided several misleading answers. After establishing that he was, in fact, involved in the website, the investigators questioned him about, among other things, whether he and Megan Dible had earned money from the site, and asked to see the contract between Megan Dible and CDM Networks.

By January 25, 2002, the press had also learned about the website and began reporting on it in an unflattering manner. The press reported that the website was run by the Dibles and that he was employed as a city police officer. The record contains no evidence identifying the person who alerted the press to the website's existence or to the Dibles' involvement in it, but, of course, a lot of people already knew. The result of that publicity was disquieting to say the least. A police lieutenant assigned to look into the situation spoke to a large number of officers and others, found that it had severely impacted their working situation, and declared that police officer morale "really hit bottom."

In due course, Ronald Dible's supervisor recommended his dismissal. The supervisor found that Ronald Dible had violated the department's regulation prohibiting its officers from bringing discredit to the city service, and that Ronald Dible had provided false answers to district investigators in the course of their investigation. Chief Harris approved Ronald Dible's dismissal.

Ronald Dible then appealed that decision to the City's Merit Board, which conducted an evidentiary hearing. At the hearing, several officers testified that they had been questioned and ridiculed about the website. A female officer, Amy Hedges, testified that she was called a "porn whore" by an individual she was attempting to arrest. She further testified that she was subjected to derogatory remarks while responding to a bar fight. Specifically, when she arrived at the bar, a patron began gyrating, told her to take off her clothes, and harassed her about the website. Officer Hedges testified that the patron's comments added to the instability of an already fluid field situation and confrontation. Another officer testified to the disrespect that he was shown after the website became publicly known. An investigating officer, who had interviewed many other officers, as well as other people, also testified to the impact of the Dibles' activity on the department. In addition, potential police recruits questioned an officer about the website on each of the five separate recruitment trips that she had conducted after the existence of the site became widely known to members of the public. Assistant Chief Joseph Gaylord testified that he believed the scandal involving Ronald Dible's participation in the sexually explicit website would negatively impact the department's efforts to recruit female officers for years to come. Ultimately, on April 3, 2002, the Merits Board issued a recommendation affirming the decision to discharge Ronald Dible.

Thereafter, the Dibles initiated the underlying action.² The district court granted summary judgment in the City's favor on each of the Dibles' claims. In its order, the district court found that, among other things, Ronald Dible's involvement in the website was not protected by the First Amendment. Subsequently, the Dibles' counsel, Keith Knowlton, filed a motion for a new trial and filed a supplement thereto. The district court denied the motions. This appeal ensued.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's grant of the summary judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

DISCUSSION

The major issue before us is whether Ronald Dible's First Amendment right to freedom of speech³ was violated when he was terminated for maintaining and participating in a sexually explicit website with his wife, Megan Dible. In fact, for all practical purposes, the other issues in this case hinge on the decision of that issue. We will, therefore, consider it first and consider the other issues raised by the Dibles thereafter.

A. Freedom of Speech

The Dibles claim that because Ronald Dible's activities must be treated as protected employee speech, the City improperly terminated him. See Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003) (setting forth elements of a prima facie case). We disagree.

The Supreme Court recently took up the issue of employee speech in general and conduct of the sort engaged in by Ronald Dible in particular. See City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). In that case, a police officer with the City of San Diego, California, made a video of "himself stripping off a police uniform and masturbating." Id. at 78, 125 S.Ct. at 522. He sold copies on eBay, under a user name of Codestud3@aol.com. Id. While it...