Hufford v. Mcenaney

• Decision Date: 22 May 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 99-36041,DEFENDANTS-APPELLANTS,99-36041
• Citation: 249 F.3d 1142
• Parties: (9th Cir. 2001) BRAD HUFFORD,, v. JAMES MCENANEY; JAY DAVIS; JAMES BOYD, INDIVIDUALLY AND AS COMMISSIONERS OF THE NORTH ADA COUNTY FIRE AND RESCUE DISTRICT; LARRY PERRY; MICHAEL CURRY, OPINION INDIVIDUALLY AND AS FIRE CHIEF AND DEPUTY CHIEF OF THE NORTH ADA COUNTY FIRE AND RESCUE DISTRICT,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1142

249 F.3d 1142 (9th Cir. 2001)

BRAD HUFFORD, PLAINTIFF-APPELLEE, v. JAMES MCENANEY; JAY DAVIS; JAMES BOYD, INDIVIDUALLY AND AS COMMISSIONERS OF THE NORTH ADA COUNTY FIRE AND RESCUE DISTRICT; LARRY PERRY; MICHAEL CURRY, OPINION INDIVIDUALLY AND AS FIRE CHIEF AND DEPUTY CHIEF OF THE NORTH ADA COUNTY FIRE AND RESCUE DISTRICT, DEFENDANTS-APPELLANTS.

No. 99-36041

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 8, 2001

Filed May 22, 2001

[Copyrighted Material Omitted] Bobbi K. Dominick and Angela Shaer; Elam & Burke; Boise, Idaho; attorneys for the defendants-appellants.

John C. Lynn; Lynn, Scott & Hackney; Boise, Idaho; attorney for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, Chief Judge, Presiding D.C. No. CV-98-00411-EJL

Before: Harry Pregerson, Sidney R. Thomas and Ronald M. Gould, Circuit Judges.

Thomas, Circuit Judge

Brad Hufford alleges that the defendants violated his clearly established First Amendment rights when they discharged him for reporting that fellow firefighters had downloaded a large cache of hard core pornographic files on the firestation's computers. Defendants appeal from the denial of their summary judgment motion asserting qualified immunity under 42 U.S.C. §§ 1983. We affirm in part and reverse in part.

I.

Hufford began his employment with the North Ada County Fire and Rescue District ("the Department") in January, 1985. In 1992, Hufford was promoted to Shift Captain, where he remained until he was discharged effective May 4, 1998. As Shift Captain, Hufford was outranked only by the fire chief and the deputy fire chief.

At all relevant times, the Department's policy prohibited "[d]isplaying visuals of sexual content . . . i.e., nude pictures, videotapes, etc." In December, 1996, when the Department was contemplating the purchase of an Internet connection, Hufford suggested that the Department adopt a policy explicitly prohibiting the use of the connection to view pornographic Web sites. The Department did not adopt a computerspecific policy at that time; however, the Department implemented Hufford's proposed policy after the incident at issue in this lawsuit. Despite the lack of a formal policy, from January until March, 1997, Hufford instructed the firefighters on his shift not to use the computer to view pornography.

On April 10, 1997, Fire Chief Perry was at Station No. 2 for a meeting, and noticed Hufford doing something at the computer:

And I looked to my left. And Brad [Hufford] was sitting in the library. And Brad was clicking through some files. And I don't recall exact words. But I think I said, "Brad, what have you got there? " And he said, "I think you'd better look at this, Chief." It's my recollection that I went in there. And I sat behind Brad while he was sitting in the chair. And he went through cache files. And his words to me, "I think some of this may be illegal, Chief." And I'm not fully aware of all the laws pertaining to the Internet and all that sort of stuff."

What Hufford and Perry saw was shocking: evidence that hundreds of hours of hard core pornographic material had been downloaded on the station's computers. Hufford and Perry examined a random sampling of the files together. According to Perry, some of the files contained pictures of children approximately 7-9 years old. Perry further described the files he viewed:

I saw women making love to women. I saw what I presumed to be children. I saw, on one, there was men with men . . . . I do not recall seeing bestiality. I do recall seeing some animals in some of those Web sites. But I do not recall any sexual intercourse with animals or viewing that . . . . There was a nude woman standing next to a horse. I believe there was another one there where a nude girl was in a reclined position with a dog standing over her. But I do not recall sexual intercourse.

Hufford and Perry compiled a list of the dates and times each of these files had last been viewed. Later that afternoon, Hufford told several members of his shift that Chief Perry had seen the Internet files, and that he believed the chief would be instigating some sort of investigation. He advised them to remove any sexually explicit materials they might have in their lockers.

Perry opted not to conduct any kind of internal investigation. Instead, having no knowledge of computers, and believing himself to be "not that good of a trained investigator," he reported the Internet cache to his "good friend, Ed Parker, Garden City police chief." Administratively, Chief Perry took no active steps to address the pornography problem on a department-wide level. He did respond--on a purely ad hoc basis--to various crew members who came to him:

And that's when the word started getting around of what was going on. And some people came to me. Well, in particular, Reggie Edwards, he was worried that we would find out that he had visited a Web site he claims to have seen accidentally . . . . It was having to do with resorts in Mexico, or something like that, and basically a clothing-optional type resort

During that period of time that Ed Parker was handling all this, several other people came into my office, talking about this issue. Some of them I gave stern warnings to. Others I didn't believe it was necessary to give them a stern warning . . . . But it became obvious to me that I was just--I needed to just stop, let Ed Parker finish off what was going on, and then take it after Ed Parker got through with it, or let Ed Parker handle the whole thing if . . . there was criminal activity here.

Although Perry characterized his discussions as sometimes involving "oral reprimands," he never documented any of the warnings. He did not issue a single written reprimand. In total, Perry claims that he issued only three or four oral warnings.

Meanwhile, as the criminal investigation progressed, pressure mounted within the Department:

And at some point here in this whole process--I'm not sure if it was after Ed Parker or just before Ed Parker came back with the results--I said to myself, "I'm tearing my fire department apart. I've got to get the message across to these guys that this is not acceptable. And I don't want to tear my fire department apart because"--I don't know. I could have disciplined half of my fire department at that point, maybe given them time off or even fired them for some of those things. But I did know that my fire department was being torn apart. And I wanted to get it put back together.

Despite the impact of the scandal on the Department's morale, Perry testified that Hufford acted properly by reporting the pornography cache, because "[t]hat's his duty as shift commander." According to Perry, pornography was a subject of regulation in the Department because "[w]e try to be pillars of the community. And pillars don't do that sort of stuff, you see." Perry further stated that Hufford's proposal for a departmental Internet policy (later adopted) was "very appropriate," because "I don't believe that sort of stuff has any--or should be on anything that the taxpayers purchased."

Given the fear that pervaded the Department while the criminal investigation was pending, Chief Perry stated that he was sensitive to the possibility of retaliation against Hufford. In particular, Perry fielded one angry complaint from Captain Bob Stevenson, who told Perry that "Brad is not the choirboy that [Perry] thought him to be and that, basically, that he predicted that, within a year, if [the Chief were to ] find out what's going on around here . . . Brad will not be employed here."

According to Perry, Hufford himself brushed off any potential threat of retaliation. Nevertheless, Perry stated that "there was a lot of fear and there was anger because no one knew exactly what was going to happen or what was in the police report there for several days . . . . I let it be known real quick that, if I thought that any retaliatory acts were going to be committed by anyone towards Brad, I would make that person my personal hobby."

The police investigation closed without any charges. Despite the depiction of extremely young children in some of the files, all of these had blocks placed over the genital areas, and were therefore deemed not illegal--at least under state law. There were also images without such blocks depicting individuals of questionable age, but in the absence of specific evidence that the individuals in the images were children, the police did not take any action.

True to Bob Stevenson's prediction, Hufford's standing within the Department began to fall directly after his exposure of the pornography cache. Within three months of the close of the investigation, Hufford received his first written reprimand ever. That reprimand involved allegedly inappropriate remarks overheard by a female firefighter, "which created for her a hostile work environment." However, no female employee had ever filed any kind of written or oral complaint about Hufford, and the evidence of the alleged incident was obtained from Brian Ashton, one of the firefighters most upset about the pornography incident.

On March 16, 1998, Hufford received a second written reprimand for forcing open the office door when the office key was missing in order to retrieve a "call back box " so that he could find a replacement for a firefighter who had called in sick. The Department reported Hufford's actions to the sheriff's office as a criminal break-in. According to Deputy Cobb of the sheriff's office, the Department had explicitly requested that the police arrest Hufford. However, no charges were filed.

Hufford's second written reprimand also documented other complaints against him, including his alleged lack of communication with other shifts and an attitude not supportive of management. Hufford requested a more detailed explanation of these other charges. In a letter dated March 27,...