Lytle v. City of Haysville, Kan., 96-3197

• Decision Date: 11 March 1998
• Docket Number: No. 96-3197,96-3197
• Citation: 138 F.3d 857
• Parties: 13 IER Cases 1355, 98 CJ C.A.R. 1237 Richard C. LYTLE, Plaintiff-Appellant, v. CITY OF HAYSVILLE, KANSAS, a municipal corporation, and James Earl Kitchings, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 857

138 F.3d 857

13 IER Cases 1355, 98 CJ C.A.R. 1237

Richard C. LYTLE, Plaintiff-Appellant, v. CITY OF HAYSVILLE, KANSAS, a municipal corporation, and James Earl Kitchings, Defendants-Appellees.

No. 96-3197.

United States Court of Appeals Tenth Circuit.

March 11, 1998.

Jack Focht, Focht, Hughey & Calvert, L.L.C., Wichita, KS, for Plaintiff-Appellant.

Alan L. Rupe, Morrison & Hecker, L.L.P., Wichita, KS, for Defendants-Appellees.

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Richard C. Lytle was employed as a police officer by the City of Haysville, Kansas from 1983 until 1991, when he was discharged after alleging that fellow Haysville officers committed second-degree murder by failing to render emergency aid to the victim of a police shooting. He brought suit against the City of Haysville and its police chief, James Earl Kitchings, contending that the defendants had attempted to cover up police officers' misconduct and that he had been fired in retaliation for his allegations against them. The district court granted summary judgment for the defendants, and Mr. Lytle appeals.

We exercise jurisdiction under 28 U.S.C. § 1291. Because the important factual issues in this case are in reality undisputed and because the district court's decision involves questions of law under the appropriate balancing tests, we believe that this case is suited for summary judgment. For the reasons given below, we affirm.

I. BACKGROUND

Responding to a traffic disturbance on the evening of December 7, 1990, Haysville police officer Luther Donald Meeks shot a Haysville resident, Datton Wilson, Jr., in self-defense. Within seconds of the shooting, Officer Meeks radioed the dispatcher to call emergency medical services. Lieutenant Bruce Powers and Officers Lanon Thompson and Tim Stock, all of the Haysville Police Department, appeared at the scene shortly thereafter.

Before the Emergency Medical Technicians (EMTs) arrived, the officers did not render emergency aid to Mr. Wilson. The officers had received instruction in cardiopulmonary resuscitation (CPR) as part of their law enforcement training and had learned that they should not move or perform CPR on critically injured persons who are still breathing, as Mr. Wilson was. The EMTs arrived at the scene approximately six minutes after the shooting. They administered CPR and transported Mr. Wilson to the nearest hospital, where he was pronounced dead a short time later.

Approximately an hour after the shooting, Mr. Lytle arrived at the scene. By that time, the EMTs had already left with Mr. Wilson. According to his deposition testimony, Mr. Lytle asked Lieutenant Powers if the officers had performed CPR on Mr. Wilson before emergency medical personnel arrived. Mr. Lytle stated that Lieutenant Powers told him that the officers had not performed CPR because Mr. Wilson was, in Lieutenant Powers's words, "dead or dying anyway." Aplt's App. vol. I at 209 (Tr. of dep. of Mr. Lytle, dated Apr. 26, 1994). However, in two written reports concerning the Wilson investigation, prepared on December 8 and December 9, 1990, Mr. Lytle did not mention the "dead or dying" comment. See id. vol. II at 598-601.

Several months after the shooting, Mr. Lytle had several telephone conversations with Mr. Jerry Berg, an attorney for Mr. Wilson's widow. At that time, Mr. Lytle knew that Mr. Berg was demanding a grand jury investigation of the shooting and threatening to sue the City. On April 27, 1991, Mr. Lytle gave a statement to Mr. Berg under oath. See Aplt's App. vol. II at 620-93 (Tr. of April 27, 1991 statement).

In his statement to Mr. Berg, Mr. Lytle explained that it was his wife who had first contacted Mr. Berg because the shooting had been troubling her husband. See id. at 624. Mr. Lytle then described his actions and observations on the evening of the shooting. He said that when he first arrived at the scene, Lieutenant Powers "just briefly told me what he wanted me to do, which was interview Mrs. Wilson." Id. at 628. Mr. Lytle said that he asked Lieutenant Powers "if they had performed any type of CPR or anything on the victim and he stated, no, he was going to die anyway." Id. at 629. Mr. Lytle said that he "was a little shocked because ... that's the first thing that should have been done, somebody should have given [Mr. Wilson] CPR or at least applied direct pressure to the wound." Id.

Within a week of the shooting, Mr. Lytle added, Officer Stock gave him the same explanation as to why the officers had not performed CPR when they first arrived at the scene: "Mr. Wilson was dying or dead anyway." Id. at 638. Mr. Lytle agreed with Mr. Berg that the job descriptions for Haysville police officers required that "[i]f the victim is still alive, proper aid should be given." Id. at 632. According to Mr. Lytle, the officers should have followed this policy by giving first aid to Mr. Wilson. When questioned by Mr. Berg, he stated that the officers' failure to render aid constituted second degree murder. Id. at 648-49.

Mr. Lytle admitted to Mr. Berg that he was under orders not to discuss the Wilson case. Id. at 633. Additionally, he stated that it would have been appropriate for him to have talked to Chief Kitchings about his fellow officers' statements and that he should have done so. Id. at 642.

On May 15, 1991, Mr. Lytle testified before a grand jury of the Eighteenth Judicial District of Kansas. An attorney from the law firm representing the City of Haysville accompanied him, and Mr. Lytle gave him a transcript of the statement to Mr. Berg. Around this time, Mr. Lytle also spoke with a reporter for the Wichita Eagle newspaper. The newspaper ran articles that quoted Mr. Lytle as saying that Powers, Thompson, and Stock were to blame for Mr. Wilson's death. The Haysville Pioneer, a local newspaper, also covered the Wilson controversy.

After reading about Mr. Lytle's allegations in the newspaper and reviewing his statement to Mr. Berg, Chief Kitchings investigated Mr. Lytle's allegations and determined that they were unsupported. The parties do not dispute that, after the newspaper reports of Mr. Lytle's allegations, morale in the Department decreased significantly. Fellow officers distrusted Mr. Lytle and refused to speak with him. Additionally, Mr. Lytle's charges undermined public trust in the Department, making law enforcement more difficult. See Aplt's App. vol. I at 90-123.

On July 16, 1991, Chief Kitchings terminated Mr. Lytle's employment. The notice of termination cited Mr. Lytle's breach of the Department's confidentiality rules, but did not discuss the effect of Mr. Lytle's statements on the functioning of the Department. See Aplt's App. vol III at 964-66.

After his dismissal, Mr. Lytle brought this suit against the City and Chief Kitchings, alleging: (1) that his termination was in breach of an implied contract; (2) that he was discharged in retaliation for speech protected by the First Amendment (his statements to Mr. Berg and the press and his grand jury testimony); and (3) that his dismissal violated state law against retaliation for whistle-blowing. The defendants moved for summary judgment, and, during a status conference, the district court orally granted their motion on all of Mr. Lytle's claims. As to the First Amendment claim, the district court granted summary judgment for both defendants on the merits and for Chief Kitchings on the additional and alternative ground of qualified immunity.

II. DISCUSSION

Mr. Lytle appeals the summary judgment granted against him on his First Amendment and state-law retaliatory discharge claims. He does not appeal the decision on his implied contract claim.

A. Standard of Review

We review a decision granting summary judgment de novo, under the same legal standard applicable in the district court. See Miles v. Denver Pub. Sch., 944 F.2d 773, 775 (10th Cir.1991). The de novo standard of review is appropriate in this case for the further reason that: "[i]n cases raising First Amendment issues ... an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. 2891, 2898 n. 9, 97 L.Ed.2d 315 (1987) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984)) (internal quotation marks omitted). Because the standard of review is de novo, we "may affirm on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result." Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 528 (10th Cir.1994).

Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue of material fact exists, a court must draw all reasonable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.

B. Issues on Appeal

1. First Amendment

Mr. Lytle first challenges the district court's grant of summary judgment against him on his First Amendment claim. He maintains that the court's ruling infringes on the constitutional rights of public employees who uncover wrongdoing in governmental agencies.

a. Pickering

balancing

It is well-established that a government employer "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983)....