Luman v. Tanzler, 26558.

• Decision Date: 28 May 1969
• Docket Number: No. 26558.,26558.
• Citation: Luman v. Tanzler, 411 F.2d 164 (5th Cir. 1969)
• Parties: James F. LUMAN, Plaintiff-Appellee, v. Hans G. TANZLER, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

411 F.2d 164 (1969)

James F. LUMAN, Plaintiff-Appellee, v.Hans G. TANZLER, Jr., et al., Defendants-Appellants.

No. 26558.

United States Court of Appeals Fifth Circuit.

April 22, 1969.

Rehearing Denied May 28, 1969.

William Lee Allen, William M. Madison, Claude L. Mullis, Jacksonville, Fla., for appellant.

Robert P. Smith, Jr., Jacksonville, Fla., Bedell, Bedell, Dittmar & Smith, Jacksonville, Fla., of counsel, for appellee.

Before PHILLIPS^*, BELL, and MORGAN, Circuit Judges.

BELL, Circuit Judge:

Defendants-appellants are members of the Police Disciplinary Hearing Board of the City of Jacksonville, Florida.Luman is a Jacksonville policeman who was suspended from the force by the Chief of Police for conduct allegedly "prejudicial to the efficiency, good name and reputation of the Jacksonville Police Department."Thereafter state criminal charges were filed against him.Defendants then proposed to hold an administrative hearing on the charges of the Chief of Police.Luman sought to have the hearing continued in view of the pendency of the state charges which admittedly arose out of the same activity that gave rise to his suspension by the Chief of Police.The continuance was denied.

Luman then sought a federal injunction, on a privilege against self-incrimination Fifth Amendment basis, to restrain the holding of such a hearing until after disposition of the state criminal charges.The district court granted a permanent injunction and this appeal followed.

In issuing the injunction, the district court said:

"If plaintiff were to appear before the Board, any testimony he might give could be used against him in the State criminal case now pending, either as evidence or as a means of obtaining evidence.If plaintiff should fail to appear, or refuse to testify, he could be dismissed pursuant to Rule 5.39(x) of the Jacksonville Police Department.Such a choice is impermissible under the Constitution of the United States.SeeGarrity v. New Jersey, 385 U.S. 49387 S.Ct. 616, 17 L.Ed.2d 562(1967), Spevack v. Klein, 385 U.S. 51187 S.Ct. 636, 17 L.Ed.2d 574(1967), Uniformed Sanitation Men Ass\'n, Inc. v. Comm\'r of Sanitation of City of New York392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 36 U.S.L. Week 4534 (U.S. June 10, 1968), Gardner v. Broderick392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 36 U.S.L. Week 4536 (U.S. June 10, 1968).In any event, the Board, at a hearing presumably for the benefit of the accused, cannot reinstate plaintiff so long as the criminal charges are pending.This Court cannot envision any public interest that would be served by having a hearing prior to the disposition of those charges."

The court thus saw Rule 5.39(x) as placing Luman in a constitutionally impermissible dilemma such as to require an injunction.The court also gave weight to the lack of public interest in having a hearing.We are constrained to the view that the injunction was not due.

The Rule and Regulations governing the Jacksonville Police Department define "conduct prejudicial to the efficiency, good name and reputation of the department" to include the following:

5.39(m) — Commission of a Criminal Act in violation of a State or Federal Statute.

* * * * *

5.39(x) — Wilful refusal or failure to appear before any Court, judge, prosecuting officer, board or body authorized to conduct any hearing or inquiry in any investigation for a violation of any of the statutes of this state when requested to do so; or, having appeared, refusal to testify or answer any question concerning his conduct as a police officer or the performance of his duties on the grounds that his testimony or answers would tend to incriminate him; or refusal to waive immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry.

The sequence of pertinent events is as follows.Luman was suspended from the police force on December 8, 1967.He timely requested a hearing before the Police Disciplinary Board.On December 29, 1967 and February 9, 1968, after Luman had requested a hearing, the Chief of Police filed two sets of written charges against him.On March 7, 1968, the State of Florida filed a nine count criminal information against him.The criminal charges involved allegations of larceny, burglary, and conspiracy.As stated, it is agreed that the criminal charges arise out of the same activities as gave rise to Luman's removal from the police force.After the state criminal charges were filed, defendants notified Luman to appear for a hearing.It was then that he sought a continuance of the hearing until disposition of the criminal charges by the state.

It is undisputed that the administrative hearing will be of no avail to Luman until there has been a disposition of the state charges.This follows from the answer of defendants that: "Plaintiff cannot possibly be restored to duty and reinstated as a member of the Jacksonville Police Department, as a result of a hearing to be held June 5, 1968 the proposed hearing date, or at any other time before the trial and disposition of the criminal charges pending against him."This fact is the basis for Luman's point, in addition to his privilege against self-incrimination argument, that no useful purpose could be served by a hearing and that the public interest would not suffer from a continuance.Defendants, on the other hand, urge that the matter of Luman's suspension should be settled one way or the other in the public interest of keeping the police force at full strength.Until the question is settled, they argue, they are not at liberty to replace Luman although he has been removed from the force.

Luman's position is that defendants seek to put him on terms with respect to his Fifth Amendment privilege against self-incrimination.¹He urges that they offer him only the choices of risking the forfeiture of his job for failure to comply with Rule 5.39(x), or the possibility of self-incrimination if he does comply.

As we read the Supreme Court opinions in this area, Garrity v. New Jersey, 1967, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562;Gardner v. Broderick, 1968, 392 U.S. 280, 88 S.Ct. 1920, 20 L.Ed.2d 1082;andUniformed Sanitation Men Ass'n v. Comm'r. of Sanitation, 1968, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089, the choices faced by Luman do not run afoul of his asserted constitutional right.The first phase of the problem was answered in the context of testimony coerced by a rule similar to Rule 5.39(x) at an administrative hearing, with the testimony given being used later against the employee in a criminal trial.This was the situation in Garrity v. New Jersey where the Supreme Court said:

"We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic."385 U.S. at 500, 87 S. Ct. at 620.

The issue in Garrity was the scope of the privilege against self-incrimination.The court approached the problem by posing the question "* * * whether the accused was deprived of his `free choice to admit, to deny, or to refuse to answer.'"385 U.S. at p. 496, 87 S.Ct. at p. 618.Concluding that he was deprived of his free choice by the impact of the forfeiture of employment rule, the statements were held inadmissible in the subsequent criminal proceeding.

This, however, left unanswered the other side of the question: whether a rule such as ...