Harper v. Crockett
| Decision Date | 26 October 1994 |
| Docket Number | No. LR-C-93-549.,LR-C-93-549. |
| Citation | 868 F. Supp. 1557 |
| Parties | Steve HARPER, Plaintiff, v. James C. CROCKETT, Individually and as Official Capacity as Chief of Police for the City of Sherwood, Arkansas, Defendant. |
| Court | U.S. District Court — Eastern District of Arkansas |
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Robert Newcomb, Little Rock, AR, for plaintiff.
David Fuqua, Little Rock, AR, for defendant.
ORDER
Defendant, James C. Crockett, has filed a motion for summary judgment. Plaintiff alleges violations of his constitutional rights. Defendant denies the allegations, contending that plaintiff's rights were not violated, and that the police department regulations at issue were not unconstitutionally overbroad or vague. Defendant's motion will be granted, for the reasons stated below.
SYLLABUS
I. BACKGROUND ................................................. 1563
II. SUMMARY JUDGMENT ........................................... 1564
III. FIRST AMENDMENT ANALYSIS OF CONNICK v. MYERS AND WATERS
v. CHURCHILL ........................................ 1564
IV. "BALANCING" ANALYSIS UNDER PICKERING ....................... 1572
V. OVERBREADTH ................................................ 1574
VI. VAGUENESS .................................................. 1580
VII. JUDGMENT ................................................... 1584
BACKGROUND
Plaintiff, Steve Harper, is a patrolman for the City of Sherwood, Arkansas. On March 2, 1993, while off duty and not in uniform, Mr. Harper went to a branch of Eagle Bank on Warden Road in Sherwood to cash his federal income tax refund check. Plaintiff became upset when the bank employees informed him that he would have to pay 10% of the refund check amount as a service charge for the bank cashing the check, since he did not have an account with Eagle Bank. After arguing with employees at the Warden Road branch, plaintiff then drove to the Eagle Bank branch on Kiehl Avenue, where the employees knew him. Mr. Harper was again told that the bank would charge a ten percent fee because he did not have an account with the bank. Plaintiff again became upset, and as he was leaving he addressed a customer, Mary Bradshaw, with a statement to the effect that An employee at the bank also heard this remark. The bank complained to the Sherwood Police Department. Defendant, Chief of Police James C. Crockett, asked Sgt. Mitch Milligan to conduct an internal investigation. Milligan first conducted an oral interview with Harper, and then asked him to provide a written account of the incident. The plaintiff wrote "I do not recall" on the report. In his deposition, plaintiff acknowledged all of the facts stated above, except that he stated he does not recall having made the statement to Ms. Bradshaw. As a result of the incident at the bank, Crockett suspended Harper for 30 days without pay. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir.1987); Fed. R.Civ.P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Eighth Circuit has set out the burdens of the parties in connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir.1988):
The burden on the party moving for summary judgment is only to demonstrate, i.e., `to point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted. Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th Cir.1988)).
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has emphasized that Rule 56 must be construed with due regard not only for the rights of people asserting claims and defenses "that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the rule, prior to trial, that the claims and defenses have no factual basis." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Whether a public employee's speech is protected by the First Amendment requires a two-step judicial inquiry. Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir.1993). The threshold issue is whether the employee's speech can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If the speech addresses a matter of public concern, then the Court must balance "the interests of the employee, as a citizen, in commenting upon matters of public concern, and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Grantham v. Trickey, 21 F.3d 289, 292 (8th Cir.1994). If the speech is not a matter of public concern, the Court does not reach the second, "balancing" step of the inquiry. Bausworth v. Hazelwood School District, 986 F.2d 1197 (8th Cir.1993); Potter v. Arkansas Game & Fish Commission, 839 F.Supp. 638, 639 (E.D., Arkansas 1993).
The inquiry into the protected status of the speech is a question of law, Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7, and thus is readily susceptible to summary judgment disposition. Pearson v. Macon-Bibb County Hospital Auth., 952 F.2d 1274 (11th Cir.1992); Bausworth, supra, at 1198. To establish that a public employee's speech is protected by the First Amendment, the employee must make a threshold showing that the speech addressed a matter of public concern, that is, a matter of "political, social or other concern to the community." Connick, supra, 461 U.S. at 143, 146, 103 S.Ct. at 1688, 1690. In determining whether the speech dealt with a matter of public concern, the focus is on the "content, form, and context of a given statement, as determined by the whole record." Connick, at 147-148, 103 S.Ct. at 1690. The Supreme Court has emphasized that "absent highly unusual circumstances, a federal court is not the appropriate forum for reviewing a public employer's reaction to an employee's speech when the employee did not speak as a citizen on a matter of public concern." Id. at 147, 103 S.Ct. at 1690.
Plaintiff contends that there are factual issues regarding what exactly Mr. Harper said at the bank. The Supreme Court recently addressed this general issue in the major First Amendment decision of Waters v. Churchill, ___ U.S. ___, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). The Waters Court ruled that "The Connick test should be applied to what the government employer reasonably thought was said, not to what the trier of fact ultimately determines to have been...
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