Homoky v. Ogden, 14–3788.

• Decision Date: 24 February 2016
• Docket Number: No. 14–3788.,14–3788.
• Citation: 816 F.3d 448
• Parties: Kirk HOMOKY, Plaintiff–Appellant, v. Jeremy OGDEN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

816 F.3d 448

Kirk HOMOKY, Plaintiff–Appellant,

v.Jeremy OGDEN, et al., Defendants–Appellees.

No. 14–3788.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 2015.

Decided Feb. 24, 2016.

Christopher C. Cooper, Ph. D., Attorney, Law Office of Christopher Cooper, Inc., Chicago, IL, for Plaintiff–Apellant.

Dan Whitten, Attorney, Law Office Of Whitten & Whitten, Portage, IN, Peter L. Boyles, Attorney, Kenneth B. Elwood, Attorney, Rhame & Elwood, Portage, IN, for Defendant–Appellee.

Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

WILLIAMS

, Circuit Judge.

Police Officer Kirk Homoky was under investigation by the Hobart Police Department for officer misconduct. As part of the investigation, he was ordered to submit to a voice stress test, a type of lie detector test, and if he did not he would be subject to dismissal. Homoky refused to sign a release form because his participation was not voluntary, and he was charged with insubordination and placed on administrative leave. He claims that by forcing him to sign the release form under threat of dismissal, he was giving up his right against self-incrimination in violation of the Constitution. We disagree. The department informed him that any statement made would not be used against him in a criminal proceeding, so it was free to compel him to answer any question, even incriminating ones. For the first time on appeal, Homoky also asserts a stigma-plus due process claim. Because it was not presented to the district court, Homoky waived this argument, and we will not review its merits.

I. BACKGROUND

In October 2012, the Hobart Police Department notified Police Officer Kurt Homoky that he was under an internal investigation by the department. This investigation involved various complaints of wrongdoing while performing his professional duties, including improper conduct at a traffic stop.

On November 13, 2012, Homoky received a letter from the Hobart Deputy Chief of Police requiring him to report to the Porter County Sheriff's Department for a voice stress test on November 19, 2012. The department's letter stated that the investigation was an administrative investigation, not a criminal one. The letter also advised Homoky that he was "afforded protection of the Garrity Rule." The Garrity rule states that incriminating answers given during any examination of a public employee during an internal investigation of the employee's official conduct cannot be used against him in any subsequent criminal proceeding. See Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)

.

On November 15, 2012, Homoky received and signed his statement of rights, which included an acknowledgment that any statements made during the investigation, or fruits of those statements, could not be used against Homoky in a subsequent criminal proceeding. It also reminded him that he was ordered to cooperate and warned that refusal to answer questions would subject him to dismissal.

On the day of the voice stress test, Homoky arrived at the Porter County Sheriff's station. Hobart Police Detectives Jeremy Ogden and Garrett Cisezweski were present at the station in the room next door to the examination room but were not administering the voice stress test. Porter County Sheriff's Department Sergeant Tim Manteuffel was to administer the test. Manteuffel instructed Homoky to sign a release form that released the Porter Country Sherriff's Department from liability and stated that Homoky "voluntarily, without duress, coercion, promise, reward or immunity" submitted to the examination. Homoky expressed concern about signing the document because he was not there voluntarily. Homoky then spoke on the phone to his attorney, and then repeated to Manteuffel that he could not sign the form. Homoky insisted that he was not there voluntarily and would not promise that he would not sue. Appellees claim that Manteuffel offered to cross out the term "voluntarily," but Homoky still refused to sign the form. However, Homoky contends that he was never given that option and that he asked Manteuffel to cross out that word, but Manteuffel stated that he could not. Cisezweski entered the room and told Homoky to sign the form. Ogden remained in the room next door, but Homoky was aware of his presence at the station. Homoky refused to sign the form and did not take the voice stress test

.

Later that same day, Hobart Police Chief Jeffrey White notified Homoky that he was on unpaid administrative leave for insubordination because of his refusal to take the voice stress test and that White had begun the process of terminating Homoky. White ordered Homoky to relinquish his Department property, including his gun and badge.

The next day, White served Homoky with written notice of the charges. The notice stated that White would be presenting formal charges against Homoky to the City of Hobart Board of Public Works and Safety on November 21, 2012. White also served a letter to the Board, and copied Homoky's attorney, stating that he would seek to terminate Homoky's employment. In response, Homoky's attorney sent the Board a document complaining about the lack of reasonable notice and due process and requested a hearing.

On November 21, 2012, the Board held its regular meeting. It changed Homoky's administrative leave from unpaid to paid and set a hearing on Homoky's termination for January 23, 2013. The Board also instructed the Hobart City Attorney to provide notice to Homoky and his counsel of the hearing and of Homoky's rights. Five days after the meeting, a news outlet quoted White as stating that Homoky was insubordinate.

A little over a week after the board meeting, Homoky's attorney notified the Hobart City Attorney that the January 23, 2013 hearing was not within thirty days of his November 20, 2012 request for a hearing, as required by Indiana Code § 36–8–3–4(c)

. On December 3, 2012, the Hobart City Attorney notified Homoky's attorney that the evidentiary hearing was rescheduled from January 23, 2013 to December 13, 2012, which was within the thirty-day period. However, on December 5, 2012, White moved to dismiss the insubordination charges against Homoky. The Board granted White's motion to dismiss and struck the December 13, 2012 hearing date.

Also, on December 5, 2012, White sent Homoky a letter stating that Homoky was to dress down and report to work on December 7, 2012. Homoky was assigned to garage duty, which included scrubbing toilets. The garage duty continued until January 25, 2013 when Homoky was ordered to report for modified uniform duties, which included fingerprinting and checking vehicle identification numbers.

Meanwhile, Homoky had filed his complaint in this case on November 26, 2012 against the Board, Chief White, and Detectives Ogden and Cisezweski alleging violations of his First and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983

and abuse of process under state law. Each defendant moved for summary judgment. The district court granted summary judgment in favor of all defendants finding no constitutional violation. Homoky does not appeal the grant of summary judgment in favor of the Board and the judgment in favor of the defendants on the First Amendment claims. He only challenges the grant of summary judgment in favor of White, Ogden, and Cisezweski as to the Fourteenth Amendment claims.

II. ANALYSIS

On appeal, Homoky argues that the district court erred by granting Ogden's, Cisezweski's, and White's motions for summary judgment as to his Fourteenth Amendment claims. Specifically, Homoky maintains that the attempts to force him to sign the release were attempts to compel Homoky to waive his privilege against self-incrimination and remove his Garrity protection. He contends that their actions were coercive in violation of the Fourteenth Amendment because he only had a choice between signing the unaltered release—which would have waived his right against self-incrimination, permitting his answers to be used against him in any subsequent criminal proceedings—or losing his job. He also argues that he suffered a constitutional violation under a stigma-plus due process theory. We review the district court's decision granting summary judgment de novo and construe all facts in favor of Homoky. Sorensen v. WD–40 Co., 792 F.3d 712, 722 (7th Cir.2015)

. "Summary judgment was appropriate if, on the evidence presented, no reasonable juror could return a verdict in [Homoky's] favor." Id.

Since Homoky brought his claims pursuant to 42 U.S.C § 1983

, to survive summary judgment, he must present sufficient evidence to create a genuine dispute of material fact that a constitutional deprivation occurred. See Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011). There are two relevant constitutional provisions. Under the Fourteenth Amendment, statements that the government compelled a public employee to give by the threat of job loss are coerced and cannot be used in any subsequent criminal proceeding. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Under the Fifth Amendment, which applies to a state actor through the Fourteenth Amendment, a state actor cannot usually compel a person to testify if the testimony would incriminate the person. See U.S. Const. amend. V ; see also Lefkowitz v. Turley, 414 U.S. 70, 73, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). However, a public employee may be compelled to answer questions in a formal or informal proceeding investigating allegations of misconduct, even if the answers are incriminating, so long as the state does not use the statements in any subsequent criminal proceeding. See Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) ; see also Turley, 414 U.S. at 77, 94 S.Ct. 316 ; Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) ("Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official...