Leonard v. City of Columbus, 75-2344
| Decision Date | 09 May 1977 |
| Docket Number | No. 75-2344,75-2344 |
| Citation | 551 F.2d 974 |
| Parties | 14 Empl. Prac. Dec. P 7566 Robert LEONARD et al., Plaintiffs-Appellants, v. The CITY OF COLUMBUS et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joel M. Gora, American Civil Liberties Union, New York City, Ellen Leitzer, American Civil Liberties Union Foundation of Ga., Inc., Margie Pitts Hames, Neil Bradley, Atlanta, Ga., Melvin L. Wulf, American Civil Liberties Union Foundation, New York City, for plaintiffs-appellants.
Lennie F. Davis, City. Atty., E. H. Polleys, Jr., Asst. City Atty., Columbus, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before BROWN, Chief Judge, and COLEMAN and MORGAN, Circuit Judges.
Robert Leonard and thirty-seven others filed this action in the United States District Court for the Middle District of Georgia, June 18, 1971, seeking declaratory relief, equitable relief, and damages. As originally cast, the suit alleged that the defendants engaged in certain racially discriminatory employment practices. At the pre-trial conference, however, the suit was radically narrowed, leaving only seven policemen plaintiffs with claims for job reinstatement plus damages for wrongful discharge. Before trial, one of the seven remaining plaintiffs also opted out. Thus, of the original thirty-seven, we now have six left, quite a decimation of forces, to say the least.
After a three day non-jury trial in February, 1975, the District Court entered an order dismissing the complaint on jurisdictional and abstention grounds. The plaintiffs appeal, asking this Court to vacate the dismissal and to instruct the District Court to decide the case on the merits. Their position is well taken.
The turbulent events from which this case arose have been well documented in other cases. See, Community Action Group v. City of Columbus, 5 Cir., 1973, 473 F.2d 966, reh. den., 475 F.2d 1404; Sumbry v. Land, 127 Ga.App. 786, 195 S.E.2d 228 (1972), cert. den., 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973).
The basic facts from which this appeal arose were:
In May, 1971, the Columbus, Georgia, police department employed approximately 318 officers, of whom fifty-two were black. Various black officers including appellants, formed the Afro-American Police League. This was the vehicle by which the black officers presented their grievances to public officials and by which they publicized their complaint of discrimination against blacks within the police department. The group's activities included issuing a press release which criticized various police activities, holding a press conference on those charges, and formulating a petition of grievances, describing their complaints of discrimination within the department.
On May 29, 1971, a black patrolman, John Brooks, failed to appear in court as a witness and was charged with contempt. He was subsequently arrested under the Judge's order. He was also suspended indefinitely on charges of conduct unbecoming an officer and feigning sickness to avoid duty. Due to this, the seven officers picketed the police station on May 29 and 30, 1971. On May 30, a meeting was held between the disgruntled black officers and various civic leaders. Appeals were made for the patrolmen to return to work. A motion was made that they go back to work, which carried by a split vote. No bargains were apparently struck at the meeting but it was stated that an attempt would be made to confer with officials to see if a solution to the complaints could be achieved.
Later on May 30, Patrolman Leonard was called off his beat and told to report to police headquarters. When he arrived, the deputy chief read a list of charges which were to be directed against Leonard. Patrolman Clark was also called in and presented with various charges.
Upset over what they thought was unfair treatment and a violation of a "cooling off" period allegedly agreed upon, the black policemen met on the morning of May 31 and decided to again picket the police department. Wearing their police uniforms, each of the seven policemen carried hand-lettered signs with statements such as: "We Don't Want to be Policeboys We Want to be Policemen", and "Afro-American Police League Want (sic) Justice." Later that day, with the news media assembled in front of the station, the seven black officers publicly unstitched the United States flag emblem from their uniforms. They stated that the American flag represented liberty and justice, and they would not wear the flag until they received those things for which the flag stood.
They resumed picketing for a while, but were told to report to the police major's office. When they arrived, they were advised that they had been dismissed from the police force and were given letters explaining their dismissal. The letters stated:
in that you did publicly remove the American Flag from the Columbus Police Uniform while picketing in front of Police Headquarters on May 31, 1971.
Later that day, the Public Safety Director held a press conference at which he read a statement which explained the actions taken by the City in dismissing the officers. 1
As the case is now presented, the basis of appellants' complaint concerns allegations of procedural defects in the dismissals and discharge for unconstitutional reasons. At the time of the dismissals, City Ordinance No. 71-7 was in effect. This ordinance established disciplinary procedures for the Columbus Police Department. The appellants complain that their dismissals were effectuated without the procedural safeguards afforded by the ordinance. 2
On June 4, 1971, counsel for appellants wrote the defendants, stating that the discharged patrolmen wished to preserve their rights to a hearing before the Police Hearing Board and requested seven days' notice prior to the hearings. On June 10, the Deputy Chief sent a letter to the appellants, replying that each had the right to appeal their dismissals to the Board and that the hearing would be scheduled in the near future. The letters also said that they would be notified of the date, time, and place for the hearing.
On June 18, the present suit was filed in the United States District Court.
On June 24 and 25, the appellants received letters from the Deputy Chief, advising them that their hearings were scheduled for June 28. In addition to restating the charges contained in the original letters of dismissal, these letters set forth additional charges against appellants based on conduct prior to their discharges. 3 At the request of Leonard's counsel, the hearing was postponed until July 9. Five other appellants received a hearing on July 15. White's hearing was held on July 22. The dismissals of Leonard and White were unanimously upheld by the Board. The remaining dismissals were upheld on four to two votes. No attempt was made by the plaintiffs to have the Board decision reviewed in the state courts, although such review is available, Ball v. Police Committee of the City of Atlanta, 136 Ga.App. 144, 220 S.E.2d 479, 480 (1975).
As noted, following a trial in this action, the District Court disposed of the case on jurisdictional and abstention grounds and did not reach the merits of the plaintiffs' claims. In so doing, the Court stated:
The second factor upon which the District Court based its opinion was that plaintiffs' claim of wrongful discharge was predicated upon constitutional grounds and the alleged misapplication of the local ordinance. Accordingly, had the plaintiffs prevailed before any of the four levels of state tribunals available to them there would have been no necessity for the federal action seeking reinstatement. This, said the Court, presented a classic case for the application of the abstention doctrine:
The facts and legal issues here presented are not novel. A strikingly similar case was before this...
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