Maciariello v. Sumner, s. 91-1226

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HALL and SPROUSE; K.K. HALL
• Citation: 973 F.2d 295
• Parties: Robert P. MACIARIELLO; Arnold Rowell, Plaintiffs-Appellees, v. W.B. SUMNER, Chief of Police, in his individual and official capacity; Paul S. Paskoff, Lancaster City Administrator, in his individual and official capacity, Defendants-Appellants, and City of Lancaster; City of Lancaster Police Department, Defendants. Robert P. MACIARIELLO; Arnold Rowell, Plaintiffs-Appellees, v. CITY OF LANCASTER; City of Lancaster Police Department, W. B. Sumner, Chief of Police, in his individual and official capacity; Paul S. Paskoff, Lancaster City Administrator, in his individual and official capacity, Defendants-Appellants.
• Docket Number: 91-1268,Nos. 91-1226,s. 91-1226
• Decision Date: 18 August 1992

Page 295

973 F.2d 295 Robert P. MACIARIELLO; Arnold Rowell, Plaintiffs-Appellees,
v.
W.B. SUMNER, Chief of Police, in his individual and official
capacity; Paul S. Paskoff, Lancaster City
Administrator, in his individual and
official capacity, Defendants-Appellants,
and
City of Lancaster; City of Lancaster Police Department, Defendants.
Robert P. MACIARIELLO; Arnold Rowell, Plaintiffs-Appellees,
v.
CITY OF LANCASTER; City of Lancaster Police Department, W.
B. Sumner, Chief of Police, in his individual and official
capacity; Paul S. Paskoff, Lancaster City Administrator, in
his individual and official capacity, Defendants-Appellants. Nos. 91-1226, 91-1268. United States Court of Appeals,
Fourth Circuit. Argued April 8, 1992.
Decided Aug. 18, 1992.

Page 296

Vance J. Bettis, Gignilliat, Savitz & Bettis, Columbia, S.C. (Linda Pearce Edwards, on brief), for defendants-appellants.

Sharon McCain Rickborn, Columbia, S.C., for plaintiffs-appellees.

Before HALL and SPROUSE, Circuit Judges, and KIDD, Senior United States District Judge for the Northern District of West Virginia, sitting by designation.

OPINION

K.K. HALL, Circuit Judge:

Robert Maciarello and Daryl Rowell are former officers of the Lancaster, South Carolina, city police department. They brought this action, alleging two claims under state law and one, alleging an infringement of free speech, under 42 U.S.C. § 1983. The defendants are W.B. Sumner, the chief of police; Paul Paskoff, the city administrator; the city; and the police department. Plaintiffs sought money damages only.

Following discovery, all parties moved for summary judgment. The district court granted summary judgment for the defendants on the state law claims, but denied it on the § 1983 claim. The plaintiffs' motion was denied in its entirety. Because their motion was based on qualified immunity, Sumner and Paskoff noted an immediate appeal to this court. On subsequent motion of the defendants, the district court certified for interlocutory appeal its order denying summary judgment to the city and police department. The district court found that the denial of summary judgment rested on a controlling question of law--whether the plaintiffs' actions in investigating alleged wrongdoing by their superior officer constituted protected speech--as to which there is substantial ground for difference of opinion, and that immediate appeal may materially advance the termination of the litigation. See 28 U.S.C. § 1292(b). We then granted leave to appeal, and all defendants are before us. We conclude that Sumner and Paskoff are entitled to qualified immunity and that there is no evidence of a custom or policy of the governmental entities that caused the supposed constitutional violation. Therefore, we reverse and remand with instructions to enter summary judgment for the defendants.

I.

In May 1987, plaintiff Rowell, then a Sergeant in the Lancaster force, arrested Shawn Scott for driving under the influence of alcohol. Pursuant to department policy, Scott was videotaped as he took a breathalyzer test. Several weeks later, Susan Howle, Scott's sister and Rowell's co-worker, asked Rowell to drop the charge against her brother. Intending to comply

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with this request, Rowell spoke to Municipal Court Judge Helen Sowell. Judge Sowell informed him that Captain Robert Broach, the patrol commander and third in command, had already approached her about the case. Broach had told her that the tape "wasn't any good." Rowell was confident that the tape was in good condition when it was received in the evidence room, and he suspected that Broach may have altered it. Rowell reported his suspicion to plaintiff Maciariello, a lieutenant and Rowell's immediate supervisor.

Rowell and Maciariello went to the evidence room to find out whether Broach had checked out the tape. The supervisor of the evidence room, Captain Bailey, stated that he had given the video to Broach, but the chain of evidence log did not show any such transaction. Rowell and Maciariello then viewed the tape and discovered that there was only sound, and no picture, recorded.

As a part of larger infighting at the Lancaster department, Maciarello and Rowell had had a long history of conflict with Broach. Seeing a chance to advance their cause, they decided to conduct an investigation of Broach without reporting their suspicions to the Assistant Chief of Police or the Chief of Police, in whom they had little trust.

At Maciariello's suggestion, Rowell returned to Judge Sowell with a hidden tape recorder. Sowell repeated that she assumed Broach had seen the Scott tape because of statements he had made to her. Rowell told Judge Sowell of his suspicions about Broach. The judge told Rowell to talk to the city solicitor and to "keep [her] out of this."

Rowell and Maciariello also asked a videotape expert whether the picture on a tape could be erased without affecting the sound. They were told that it could be done easily.

In mid-August, Assistant Chief Harris overheard Rowell and Maciariello as they discussed their clandestine activities. After confronting them about the matter, Harris requested that Chief Sumner initiate an internal investigation. Chief Sumner appointed Lieutenant Balkcum of the Detective Division to conduct an internal review. Balkcum's final report concluded that Broach engaged in no wrongdoing. As Rowell and Maciarello would have quickly learned had they reported their suspicions earlier, the video camera Rowell used to tape the Scott arrest had malfunctioned, and the Scott tape was one of at least six on which there was no picture.

Chief Sumner decided to demote Rowell and Maciariello for failing to report their suspicions prior to undertaking their "devious" private investigation. Upon learning of their demotions, Rowell and Maciariello went to Paul Paskoff, the City Administrator. After talking with Paskoff, both men placed their badges on his desk and resigned. ¹ They filed grievances concerning their demotions. Though the initial hearing board ruled for Rowell and Maciarello, Sumner overruled the board, and the Lancaster City Council upheld the demotions.

Nearly three years later, in March, 1990, Rowell and Maciariello filed this action. The only claim before us today is their assertion that their first amendment right to freedom of speech was violated by their demotions. In denying summary judgment for Sumner and Paskoff, the district court ruled that the law regarding retaliation for First Amendment activity is clearly established and that the "defense of qualified immunity does not pertain to this case." Sumner and Paskoff's appeal of the denial of summary judgment is based on qualified immunity, and we have jurisdiction under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). As we related above, the defendant governmental entities have appealed the same order through § 1292(b) certification.

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II.

Governmental officials performing discretionary functions are shielded from liability for money damages so long "as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Moreover, there are two levels at which the immunity shield operates. First, the particular right must be clearly established in the law. Second, the manner in which this right applies to the actions of the official must also be apparent. Tarantino v. Baker, 825 F.2d 772, 774-75 (4th Cir.1987), cert. denied, 489 U.S. 1010, 109 S.Ct. 1117, 103 L.Ed.2d 180 (1989). Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines....