Donaggio v. Arlington County, Va.

Decision Date28 March 1995
Docket NumberCiv. A. No. 1:94CV1277.
Citation880 F. Supp. 446
PartiesJohn DONAGGIO, Plaintiff, v. ARLINGTON COUNTY, VIRGINIA, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

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Michael T. Leibig, Carla Markim Siegel, Zwerdling, Paul, Leibig, Kahn, Thompson & Driesen, Fairfax, VA, for plaintiff.

Barbara S. Drake, County Atty., Ara L. Tramblian, Deputy County Atty., Arlington, VA, for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

Does the First Amendment impose limits on partisan, government-sponsored speech so as to bar a county police chief from sending uniformed, armed, and publicly-paid police officers to appear at the nation's Capitol building to demonstrate in support of controversial proposed legislation? Does the First Amendment protect a police officer's right to refuse to participate in such a demonstration if he opposes the legislation? These intriguing questions of constitutional law, as well as several issues concerning municipal and individual liability under 42 U.S.C. § 1983, are presented by this action brought by a police officer, John Donaggio, against his county employer and its police chief.

Cross motions for summary judgment have been filed. The material facts are not in dispute. Although the Constitution protects Donaggio's right to refrain from speaking, he is not entitled to relief under § 1983 for three alternative reasons, namely that (i) as a matter of law, his participation in the demonstration was voluntary, (ii) had he been compelled to attend the demonstration in violation of his constitutional rights, the defendants named in this suit are not the parties liable for the violation, and (iii) in any event, qualified immunity bars recovery against the individual defendant. As a result, defendants' motion for summary judgment must be granted.

I.1

John Donaggio has been an Arlington County police officer since April 1990. In early May 1994, the United States Congress was considering the addition of a highly controversial assault weapons ban to the Omnibus Crime Bill of 1994. This legislation was supported by the International Association of Chiefs of Police (IACP), a private professional organization of which Arlington County's Police Chief William Stover is a member. IACP officials asked Chief Stover for assistance in connection with mounting a public demonstration designed to encourage the House of Representatives to pass the assault weapons ban. Specifically, Stover was asked to send police officers for a media photo opportunity at the Capitol building. Stover personally supported the assault weapons ban, and was aware that the Arlington County Board of Supervisors had expressed its support for a similar weapons ban that was proposed in the Virginia General Assembly earlier in the year.2 As a result, Stover agreed to IACP's request, and instructed his subordinates to find ten police officers who would volunteer to attend the demonstration as a special overtime detail at time and a half pay. Stover intended that participation in the detail be entirely voluntary. Yet, he admits that he took no steps to insure that subordinates properly carried out his instructions.3

On May 1 and 2, patrol supervisors announced at roll call that the overtime detail was available and would take place on May 5. The supervisors stated only that the detail was for a photo opportunity in Washington, D.C. and that other police departments would be involved. Ten officers, including Donaggio, volunteered for the special detail. They were told to assemble at the police station at 11:00 a.m. on Thursday, May 5, in dress uniform.

Over the next two days, Donaggio and several other officers inquired further and were told more about the detail. There was initially some confusion about the detail's purpose, and several supervisors mistakenly told officers that the detail was in honor of the National Police Memorial, or that it was to "kick off" National Police Week. Although police supervisors knew that the officers who volunteered for the detail were unaware of its nature, they took no steps to ensure that the officers were accurately informed. Eventually, however, Donaggio and other officers learned that the detail was for a photo opportunity showing police officers in support of the assault weapons legislation. On learning this, some were disinclined to participate. Donaggio and several other officers told their supervisors that they opposed the bill and did not wish to attend the demonstration. One officer who initially had volunteered, Andrew Hayes, was excused by a supervisor after expressing his opposition to the detail. But Donaggio and other officers were told that they were required to attend unless they could find a replacement who was not already assigned to be on duty that day and who would appear in uniform at the appointed place and time.

Specifically, on the morning of May 5, Donaggio spoke with Corporal Ed Chapman and then Lieutenant John Blake about the detail. They told him if he failed to attend, he might be subject to discipline in the form of a "yellow letter" of corrective action placed permanently in his file and the loss of four hours of his accumulated leave. Lieutenant Blake acknowledged that any disciplinary action he recommended would have to be approved by higher officials including the police chief.4 Contemporaneous with his conversations with Corporal Chapman and Lieutenant Blake, Donaggio also spoke to the president of the local chapter of the police union, and to the union's counsel.5 Each told Donaggio that disciplinary action against him would violate Arlington County's "Little Hatch Act," a county ordinance concerning the political activities of county employees.6 The union's attorney further advised Donaggio that there would be less publicity and confrontation if he agreed to go, but that if he refused to do so, any punishment he received would definitely be rescinded.7 There was also some discussion between Donaggio and the union's attorney about the possibility of recovering an award of compensatory damages.8

Donaggio arrived at the station on the morning of May 5, in uniform, as directed. From there, he and nine fellow officers proceeded to the U.S. Capitol where they were met by an IACP representative. The officers were instructed not to speak to anyone else or to express opposition to the bill. No other police officers or departments were present at the photo opportunity. The ten Arlington County officers were arranged in a line ascending the steps of the Capitol. As then Treasury Secretary Lloyd Bentsen entered the building to lobby for the assault weapons bill, he shook hands with and spoke briefly to each officer. Photos and film of Bentsen and the Arlington County officers subsequently appeared on the CBS evening news, and in various newspapers, including USA Today. The proposed assault weapons provision passed in the House by a margin of two votes, and eventually became law in September 1994.9

Controversy concerning the demonstration continued within the Arlington County police department even after the event. A copy of the USA Today photo was anonymously posted on a bulletin board in the department's roll call room, along with a copy of Arlington County's "Little Hatch Act." In addition, a police lieutenant discussed the matter at roll call on May 9, and inaccurately stated that a supervisor accompanied the officers to the Capitol, that other police departments participated in the demonstration, and that no one was threatened with a loss of leave if he or she did not attend.

On August 10, 1994, a taxpayer filed a civil complaint in Arlington Circuit Court challenging the payment of overtime wages to the police who attended the demonstration on non-constitutional grounds as an unlawful expenditure of county funds. The suit, styled Blackman v. Stover, et al., was brought against Chief Stover and the ten officers. It sought a decree requiring the officers to reimburse the County for the overtime compensation they received. The County Attorney filed a demurrer on behalf of Chief Stover on the ground that he acted within his authority in approving the use of county funds for the special detail. Donaggio appeared by separate counsel and argued against the demurrer and in favor of the taxpayer's position. The Arlington Circuit Court granted Chief Stover's demurrer, finding that his actions were within his authority under state law.10 Given this ruling, the taxpayer plaintiff conceded that his claims against the police officers could not succeed, and therefore the Circuit Court also dismissed the action as to the police officers.11 The taxpayer has filed a petition for appeal to the Supreme Court of Virginia, which petition is currently pending before that court.12

In September 1994, Donaggio commenced this action against Arlington County and against Chief Stover, in his official and his individual capacities.13 He asserts four claims:

(i) a § 1983 claim for violation of his First Amendment rights,
(ii) a § 1983 claim for violation of his Fourteenth Amendment right against having his liberty restricted or his name, likeness, and reputation appropriated without due process of law,
(iii) a claim of common-law defamation, harm to reputation, and invasion of privacy, and
(iv) a claim for violation of Arlington County's "Little Hatch Act."14

Donaggio seeks a declaratory judgment, permanent injunctive relief, compensatory and punitive damages, and his attorneys' costs and fees.

II.

Donaggio moves only for partial summary judgment, seeking a ruling that defendants are liable on Counts 1 and 2, the § 1983 claims.15 In seeking summary judgment, Donaggio does not rely on his allegation that he was forced to attend the demonstration. Rather, he contends that his First and Fourteenth Amendment rights were violated by defendants even if his participation...

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