Gibson v. Mayor and Council of Wilmington

• Decision Date: 08 January 2004
• Docket Number: No. 02-3952.,02-3952.
• Citation: 355 F.3d 215
• Parties: Christopher GIBSON, Appellant v. MAYOR AND COUNCIL OF THE CITY OF WILMINGTON, a municipal corporation, Michael A. Boykin, Rita Crowley, Marlyn Dietz, and Michael Maggitti, all in their individual capacities, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

355 F.3d 215

Christopher GIBSON, Appellant v. MAYOR AND COUNCIL OF THE CITY OF WILMINGTON, a municipal corporation, Michael A. Boykin, Rita Crowley, Marlyn Dietz, and Michael Maggitti, all in their individual capacities, Appellees.

No. 02-3952.

United States Court of Appeals, Third Circuit.

Argued September 8, 2003.

Decided January 8, 2004.

Appeal from the United States District Court for the District of Delaware, Gregory M. Sleet, J.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James J. Knicely, (Argued), Knicely & Associates, P.C., Williamsburg, Thomas S. Neuberger, Thomas S. Neuberger, P.A., Wilmington, for Appellant.

Jan A.T. Van Amerongen Jr., (Argued), Jan A.T. van Amerongen, LLC, Wilmington, for Appellee.

Before BARRY, BECKER, and GREENBERG Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Plaintiff Christopher Gibson ("Gibson"), a ten year veteran of the Wilmington, Delaware Police Department ("WPD") who was discharged for making dishonest statements to his supervising officers, appeals the District Court's sua sponte grant of summary judgment on the grounds that the regulation pursuant to which he was discharged, WPD Directive 7.3D, the "Honesty Directive," was vague and overbroad. Directive 7.3D provides: "Members and employees are required to be truthful and forthright at all times. Violation of this regulation will result in disciplinary action as specified for a class `A' violation, with the only applicable penalty being dismissal." While Gibson's vagueness and overbreadth challenges are facial he contends, as required by overbreadth doctrine, that a substantial amount of speech protected under the First Amendment will be chilled under its aegis.

In addition to asserting this substantive claim, Gibson claims that the grant of summary judgment should be set aside because the District Court failed to give notice that summary judgment was being contemplated against him. Concomitantly, Gibson contends that the grant of summary judgment should be set aside because it prevented him from pursuing his chosen trial strategy. Gibson also argues that the District Court abused its discretion in reopening the record once jury deliberations had begun (1) by allowing the jury to hear audio tapes of conversations not introduced at trial that Gibson had had with his supervisor and with his brother Ed, a civilian employee of the WPD, which contained some of the false statements at issue; and (2) by supplying the jury with dictionary definitions of the words "motivating" and "forthright" at its request. Gibson also contends that the District Court erred in ruling against him under Federal Rule of Evidence 405(b) when it refused to allow him to admit into evidence documents offered to show that he was not dishonest.

We will affirm the judgment in all respects. In doing so we recognize an exception to the notice requirement of Rule 56 in those cases where summary judgment is granted sua sponte subject to the meeting of three conditions: (1) the point at issue is purely legal; (2) the record was fully developed, and (3) the failure to give notice does not prejudice the party, all of which are met here. We conclude that the District Court did not err: (1) in rejecting Gibson's vagueness and overbreadth challenges; (2) in its rulings to reopen the record to admit audio tape recordings and two dictionary definitions for the jury's consideration; and (3) in denying Gibson the right to introduce into evidence documents pertaining to Gibson's general job performance and good character.

I. Facts and Procedural History

Gibson joined the Wilmington Police Force on November 13, 1989. On July 15, 1999, he was scheduled to serve a one day suspension for a previous failure to follow the sick leave policy. In connection with that suspension, Gibson was required to surrender his departmental equipment for that one day; however, he did not turn in his equipment at the end of his previous shift (on July 14). On July 16, 1999, Gibson was scheduled to return to work at 6:00 a.m. On the morning of July 16, Gibson called off sick at 5:36 a.m. by placing a call to Sergeant Stevenson. When asked to give his location, he supplied the address as 1208 Pearl St., Wilmington. However, he was apparently calling from 401 Llangollen Blvd. in New Castle, a separate municipality some eight miles from Wilmington. Pursuant to the City of Wilmington Police Directive 7.1J, police officers are required to be residents of the City of Wilmington.

Directive 6.42(A)(9) of the Wilmington Police Officer's Manual requires that an officer calling off sick:

shall not leave his location, unless authorized by the Police Physician or the officer's private physician. If the authorization is granted, and prior to leaving their reported location, it will be the responsibility of the officer to inform the House Sergeant of his leaving that reported location. The officer will also report the reason for leaving the location.

During the morning of July 16, Sergeant Greg Ciotti, Gibson's immediate supervisor, learned that Gibson had failed to turn in his equipment. At approximately 12:30 p.m., Ciotti went to 1208 Pearl St. to collect the equipment. No one answered the door, but Ciotti could see that someone was in the house. Ciotti called the WPD radio room to confirm the address. The radio dispatcher phoned Gibson at the call-off number he had provided that morning. Gibson answered the radio room's call but was not, in reality, at the Pearl St. location. Apparently, Gibson had instructed his sister-in-law who lives at the Pearl St. location to re-direct his calls to New Castle. Gibson told the radio dispatcher that he could not come to the door because: "Ah right now, I don't have any clothes on right now. I'll give `em a call."

According to the WPD, Gibson compounded his dishonest conduct by collaborating with his brother Ed (a civilian WPD radio room employee) to support his version of his location that morning. In a transcript of a conversation with his brother on the afternoon of July 16th, Gibson asks him: "Did anybody ask you anything?" Ed replies: "Let me call you back on an ..." Apparently, Gibson later admitted under questioning from Sergeant Hartsky (the police investigator in his case who also served as prosecutor at the administrative hearing) that Ed was referring to an "untaped line." Gibson also admitted that he and his brother "c[a]me up with an idea of what should be said [to Sergeant Ciotti] in case [the matter] came back up later." Additionally, he admitted that they agreed to say that Gibson had been in his room all along.

Ciotti believed that he had been lied to, and began an investigation of Gibson regarding possible dishonesty and residency rule violations. Sergeant Hartsky of the Office of Professional Standards ("OPS") interviewed Gibson, who was represented by counsel. After the interview and upon completion of her investigation, Hartsky charged Gibson with two counts of dishonesty and one count of failure to follow the sick leave policy. As described above, WPD Directive 7.3D, the "Honesty Directive," states: "Members and employees are required to be truthful and forthright at all times. Violation of this regulation will result in disciplinary action as specified for a class `A' violation, with the only applicable penalty being dismissal." Thus, if found guilty of the dishonesty charges, Gibson faced certain dismissal.

An administrative hearing before the Complaint Hearing Board ("Board") ensued on December 13, 1999. Captains Crowley, Maggitti, and Dietz were randomly selected to hear the case. Prior to the hearing, Hartsky hand-delivered a trial "packet" to Gibson's attorney and to each member of the Board. The packet contained a copy of each item that OPS was to present at the hearing: a descriptive statement of each of the three charges against Gibson; Hartsky's investigative report; a departmental information report prepared by Ciotti; transcripts of OPS's August 24, 1999 and September 8, 1999 interviews with Gibson's brother Ed; a transcript of OPS's August 30, 1999 interview with Gibson; transcripts of the July 16, 1999 phone calls; the Illness Leave report filled out by Stevenson recording Gibson's 5:36 a.m. sick leave call; and Gibson's thirteen page memorandum outlining his factual and legal contentions.

The hearing lasted a full day and each side was given the opportunity to submit evidence and to call witnesses. During the hearing, which was videotaped, Hartsky played the audiotape recordings of the four phone calls that had been recorded: the Data Center's 12:30 p.m. call to Gibson with Ciotti on the radio; Ed's 1:55 p.m. call to Gibson; Ciotti's 2:40 p.m. call to Ed; and Ed's 2:45 p.m. call to Gibson. At the conclusion of the December 13th hearing, the Board found Gibson guilty of each of the three charges. On December 17, 1999, Gibson filed an appeal to the Appeal Board. The Appeal Board consisted of the Chief of Police, a representative from the City's Personnel Department, and the Vice-President of the Fraternal Order of Police. The Appeal Board convened on February 29, 2000 and unanimously upheld the Board's decision to discharge Gibson.

On August 20, 2000, Gibson filed a wrongful discharge suit in the District Court against the Mayor and Council of the City of Wilmington pursuant to 42 U.S.C. § 1983. In his complaint, Gibson alleged that the WPD had terminated him pursuant to a vague and overbroad municipal policy which infringed his First Amendment right to free speech. Gibson also claimed that the Board's ex parte proceedings (i.e. receiving the packet of materials before the hearing) resulted in a biased Board. Finally, he argued that Marlyn Dietz ("Dietz"), one of the members of the Board, was actually biased against him.

Gibson moved for summary judgment on the issue of overbreadth and vagueness. The District Court denied the motion stating that there were "genuine issues of...