Eaton v. Harsha, 06-4030-JAR.

• Decision Date: 04 May 2007
• Docket Number: No. 06-4030-JAR.,06-4030-JAR.
• Citation: 505 F.Supp.2d 948
• Parties: Kenneth EATON and George Campbell, Plaintiffs, v. Steve HARSHA, et al., Defendants.
• Court: U.S. District Court — District of Kansas

505 F.Supp.2d 948

Kenneth EATON and George Campbell, Plaintiffs, v. Steve HARSHA, et al., Defendants.

No. 06-4030-JAR.

United States District Court, D. Kansas.

May 4, 2007.

Clinton E. Patty, John C. Frieden, Kevin M. Fowler, Frieden & Forbes, Topeka, KS, for Plaintiffs.

MEMORANDUM ORDER AND OPINION

JULIE A. ROBINSON, District Judge.

This matter comes before the Court on the parties' cross motions for summary judgment. Plaintiffs Kenneth Eaton and George Campbell, officers of the Topeka Police Department ("TPD"), bring this action under 42 U.S.C. §§ 1983 and 1988 and the First and Fourteenth Amendments to the United States Constitution against their employer, the City of Topeka, and Steve Harsha, the Chief of Police for the City of Topeka, alleging that defendants violated plaintiffs' right to free speech. The Court now considers motions for summary judgment filed by defendants Harsha and the City of Topeka (Docs.51, 53) and by plaintiffs Eaton and Campbell (Doc. 57). For the reasons set forth below, the Court grants defendants' motions and denies plaintiffs' motion, and dismisses this action.

I. Uncontroverted Facts

The following facts are uncontroverted. Plaintiff Eaton was hired by the City of Topeka as a law enforcement officer in 1985, and in 1998 he was promoted to the rank of detective. Plaintiff Campbell was hired by the City of Topeka as a law enforcement officer in 1978, and in 1987 he was promoted to the rank of detective.¹ At all times relevant to this action, Steve Harsha was the Chief of Police for the City of Topeka.

The Overstreet Column

On February 17, 2006, the TOPEKA CAPTAL-JOURNAL published a column written by Glenda Overstreet, the president of the Topeka branch of the NAACP titled, "Who will seek justice?" In the column, Overstreet related her experience of attending a court hearing in which a young African-American man was sentenced on drug charges. Overstreet noted that she was the only other African-American in the courtroom besides the defendant. Overstreet wrote that when the defendant addressed the court, he read eloquently from handwritten notes, but at the end of his presentation, the judge rendered the sentence requested by the prosecutor, "as if the young man hadn't spoken at all — or he hadn't been heard or seen at all." Overstreet closed her article by stating that she could be reached at her email address, which she provided.

Eaton and Campbell's Reaction to the Overstreet Column

That same day Eaton sent an email from his personal email account at his home to the editorial departments of the TOPEKA METRO NEWS and the TOPEKA CAPITAL-JOURNAL and to several fellow officers of the TPD at their TPD email accounts. Attached to this email was a letter to the editor written by Eaton in response to Overstreet's column. In this letter, Eaton wrote that Overstreet refers to herself as African-American in her column and asked "How is it in Africa? Have you ever been there? If it's so great in the `home land', then why are you here?" Eaton referred to the NAACP as a "Government Sponsored/Endorsed Hate group." In referencing the African-American defendant in Overstreet's article, Eaton wrote "being a colored person does not give you a `get out of trouble free card' to be used when you want it." Later in his letter, Eaton wrote "Yeah, I used the, word, `colored.' If you don't like it, change what the fourth letter in `NAACP' stands for." Eaton mentioned Overstreet's son,² and asked if she had an "axe to grind." Eaton further wrote that "Topeka just showed again how much it bends over backwards for the black community by hiring a black city manager. I would love to see how much more `qualified' our new manager was over the other 30 candidates."

On February 19, Campbell sent an, email from his personal email account at his home to Overstreet in response to her February 17 column. Campbell's email stated:

Glenda, can you explain why `African-American,' when I thought everyone born/raised/naturlized [sic] in the USA was an `American'? You seem to be more of a racist than anyone else. I was also very dissappointed [sic] in your last article in the Capital Journal, when you seemed to feel there was an injustice being served on the gentelman [sic] being sentenced on drug charges, just because of his race. Did it not occurr [sic] to you that he was being sentenced because he `broke the law'? `Or is this a lashing out at the Criminal Justice System because of [REDACTED]['s] latest problems?

Overstreet found Campbell's statements to be disrespectful and insulting. She also was offended by Campbell's reference to her son.³ At that time, Overstreet did not know that Campbell was a police officer. On February 20, Overstreet replied to Campbell's email. On February 21, Campbell forwarded his February 19 mail and Overstreet's February 20 reply to his TPD email account. Later on February 21, Campbell forwarded these emails from his TPD email account to Eaton and another TPD Detective at their respective TPD email accounts. His signature block, identifying him as Detective G. Campbell, Financial Crimes Unit, Topeka Police Department, was attached to his February 21 email to Eaton and the other detective.

On February 22, Eaton accessed his TPD email account from his home and sent a reply to Campbell's last email to the TPD email accounts of Campbell and another detective. Eaton also copied Overstreet on this reply. This email included the February 19 and 20 email exchanges between Campbell and Overstreet and Campbell's signature block identifying him as a TPD detective. Eaton's February 22 email stated:

I do believe that it was some of the "Africans" that "Chose" to sell their own ... Also her sons [sic] `business' is now public and is no longer private since he has been arrested. Or are we not important [sic] enough because of our skin color to do this. I think not! Glenda, you too stay tuned to the editorial pages .....:)

Upon receiving this email, Overstreet realized that Eaton and Campbell were TPD officers and that they had shared these emails with at least one other police officer. Overstreet considered Eaton's statement abusive, insulting, and disrespectful. She also thought that Eaton's "stay tuned" comment was a threat, and she was concerned for her personal safety and the safety of her family. After receiving this email, Overstreet immediately sent an email to Al Martin, Director of the Topeka Human Relations Commission ("THRC"), to make him aware of these emails.

Public Reaction to Eaton and Campbell's Statements

On February 22, Acting City Manager Neil Dobler sent Chief Harsha an email stating: "We have a serious problem here. Please read and give me a call." Dobler attached to his message an email he received from Martin. Martin's email informed Dobler that Overstreet, the president of the local NAACP branch, was "livid" over her receipt of emails from TPD officers. Martin also attached to his message the email Overstreet received from Eaton that included the earlier email exchange between Overstreet and Campbell and identified Campbell as a TPD detective. Martin suggested to Dobler that the officers apologize to Overstreet, and he informed Dobler that Overstreet had contacted the City Council and the TOPEKA CAPITAL-JOURNAL regarding the matter.

After reading the email, Chief Harsha had a conversation with Dobler. Dobler told Chief Harsha that an investigation should be initiated immediately to determine if Eaton or Campbell had violated City policies or TPD regulations. An investigation was initiated, and Chief Harsha put Eaton and Campbell on administrative leave with pay during this investigation.

Within minutes of Eaton and Campbell being placed on administrative leave, Chief Harsha's office was inundated with media requests, questions, and phone calls. For several weeks, Chief Harsha spent an extra amount of time working with the Public Information Officer, Kristi Pankrantz, to handle all of the media requests. Pankrantz testified that she typically receives seven to ten media calls a day, but for a couple weeks during this time period, she received about fifteen to twenty media calls a day.

On February 24, Eaton's letter to the editor was published in the TOPEKA METRO NEWS, and it was later published in the TOPEKA CAPITAL-JOURNAL. Overstreet read this article, and found Eaton's comment that "just because you're African American, doesn't mean you're better than anyone" to be insulting and verbally abusive to her and to other African-Americans. She also thought Eaton's comments about "how is it in Africa" and "why are you in America" were very offensive and that his reference to the NAACP as a "government sponsored/endorsed hate group" was incredible. Overstreet was also disturbed by Eaton's reference to her as a "colored person," and she believed that Eaton used that phrase to be insulting. Overstreet was further troubled by Eaton's reference to her son. This comment made her fearful of some conspiracy against her son because she knew that Campbell worked on her son's case and she was concerned that Eaton may also be involved in the case. The fact that Eaton and Campbell were sharing their views with other officers caused Overstreet concern that their attitudes and possibly the attitudes of other officers would affect her son's case. Further, Overstreet felt that Eaton's comment that Topeka bends over backwards for the African-American community by hiring an African-American City Manager was a slap across every African-American's face. As president of the local branch of the NAACP, Overstreet received phone calls from many African-American and white members of the community who were offended by that comment. Based on the comments of both Eaton and Campbell, Overstreet was concerned about whether these officers were able to do their job with sensitivity to diverse citizens and treat all members of the community fairly.

On or about February 24, Chief Harsha was...