McMullen v. Carson

• Decision Date: 14 July 1983
• Docket Number: No. 82-572-Civ-J-12.,82-572-Civ-J-12.
• Citation: 568 F. Supp. 937
• Parties: Robert C. McMULLEN, Plaintiff, v. Dale CARSON, etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

568 F. Supp. 937

Robert C. McMULLEN, Plaintiff, v. Dale CARSON, etc., et al., Defendants.

No. 82-572-Civ-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

July 14, 1983.

Samuel S. Jacobson, Warren K. Anderson, Jr., Jacksonville, Fla., for plaintiff.

Robert G. Alexander, and Michael B. Wedner, Jacksonville, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MELTON, District Judge.

Plaintiff Robert C. McMullen, a former clerical employee at the Office of the Sheriff of Duval County, Florida, brought this action against Sheriff Dale Carson and the City of Jacksonville ("City") pursuant to 28 U.S.C. §§ 2201, 2202 (1976), and 42 U.S.C. § 1983 (1976).

Plaintiff sued Sheriff Carson and the City alleging he was improperly dismissed from employment by Sheriff Carson in violation of his first amendment rights of freedom of speech, belief, association and assembly, as guaranteed against state infringement by the fourteenth amendment's due process clause. Plaintiff seeks reinstatement as an employee of the Sheriff's Office and also an award of back pay as damages from Sheriff Carson and the City. The parties have stipulated, however, that no damages will be sought from Sheriff Carson individually, but rather that the City alone will be responsible for damages in the event the Court concludes that plaintiff is so entitled. Plaintiff also seeks an injunction enjoining Sheriff Carson both individually and in his capacity as Sheriff against taking further actions in violation of plaintiff's constitutional rights.

After conducting a trial on the merits of this cause, and having heard argument by counsel for the respective parties, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

1. Following initial applications and interviews, plaintiff was hired by the Jacksonville Sheriff's Office in August 1981 as a clerk typist. Plaintiff was discharged from that position on October 10, 1981, after having failed the typing portion of the requisite civil service examination. On October 12, 1981, plaintiff was hired as a temporary full time clerk in the records section of the Sheriff's Office. That position was a terminable-at-will position.

2. As a temporary full time clerk, plaintiff was responsible for filing both public and confidential records. Those records included automobile accident reports, criminal history files, and offense reports for ongoing criminal investigations. Plaintiff had unrestricted access to numerous state and national criminal records through the office's computer system. Plaintiff also performed fingerprinting services for various individuals seeking employment and registered firearms as part of his job.

3. Plaintiff performed his job in the records section very well. He was largely unsupervised during the working day. He received numerous compliments and at least one very favorable performance review from his superiors. Plaintiff was a courteous, conscientious employee who encountered no difficulties in getting along with his fellow employees or the public while a member of the records section.

4. In September 1981, plaintiff and his wife attended a Ku Klux Klan ("KKK" or "Klan") rally in Lakeland, Florida. He went to the rally to hear the remarks of Bill Wilkinson, the Imperial Wizard of the Invisible Empire of the Knights of the KKK. Plaintiff went to the rally with the purpose of joining the KKK. The rally was a "traditional" Klan rally which featured, among other things, a speech by Mr. Wilkinson and a "traditional cross lighting" ceremony. While there, plaintiff obtained an application form to join the Invisible Empire of the Knights of the KKK. He also met and spoke with Mr. Wilkinson. Plaintiff previously had seen Klan literature while living in North Carolina and agreed with the views of the Klan that black and white people should not mix. About a month after the rally, plaintiff completed and mailed in the application. In it, plaintiff's first allegiance was an "unqualified allegiance" to the white race throughout the world. Allegiance to his native country was subordinate.

5. In December 1981, plaintiff became a recruiter for the Klan. In January 1982, while still employed as a temporary full time clerk in the Sheriff's Office, plaintiff began his recruiting activities for the Invisible Empire of the Knights of the KKK. Recruiting on his own time, plaintiff distributed Klan literature and contact cards at shopping centers, flea markets, and other public areas.

6. In late January or early February 1982, the home of a black woman named Angela Harrell was burglarized in Jacksonville. Among other things, the burglars left a cross in the yard of the Harrell home. The incident received widespread publicity, which attributed the crime to the Klan. The investigation of the incident by the Sheriff's Office ultimately led to the conviction of a Marine and two juveniles, none of whom were members of the Klan. When first reported, however, the incident prompted Wilkinson to call plaintiff to inquire about the possibility of holding a press conference to disclaim Klan responsibility.

7. On February 13, 1982, Mr. Wilkinson and plaintiff held a press conference in front of City Hall. Andy Greenspan, a reporter for WJXT Channel 4, the local CBS affiliate, conducted a taped interview with plaintiff and Mr. Wilkinson. During that interview, Mr. Wilkinson disclaimed Klan responsibility for the Harrell incident. In addition, in response to a question, plaintiff identified himself as a recruiter for the KKK and as an employee of the Sheriff's Office. The Greenspan interview was broadcast over the 6:00 P.M. evening news on February 13, 1982. According to the station's ratings, anywhere from 117,000 to 182,000 adult viewers in the Jacksonville area watched the broadcast in which the interview was aired.

8. Media coverage regarding plaintiff's status as a recruiter for the KKK expanded rapidly. On February 14, 1982, both television and newspaper media published stories concerning plaintiff's status and activities.

9. Upon learning about plaintiff's recruitment activities, Sheriff Carson determined it was "vital" that plaintiff be dismissed immediately as an employee of the Sheriff's Office. He felt any delay in discharging plaintiff would seriously damage his and his employees' credibility in the Jacksonville community, including in particular the minority community, and would severely and adversely impact on his ability to enforce the law. The Sheriff was also concerned with maintaining high internal morale within his office, with avoiding possible violent demonstrations protesting the presence of the Klan within his office, and with maintaining as large a pool of qualified minority applicants for employment as possible within the City's affirmative action plan.

10. On Monday, February 15, 1982, after a weekend of publicity concerning plaintiff's recruitment activities for the Klan and his being an employee of the Sheriff's Office, Sheriff Carson met with plaintiff and indicated he had no choice but to dismiss plaintiff. Plaintiff told the Sheriff he had expected the dismissal might occur.

11. Later during the day of February 15, 1982, Sheriff Carson appeared at a news conference to announce his action in terminating plaintiff. Sheriff Carson announced it was against the best interests of the department to retain plaintiff. Further, Sheriff Carson stated he felt he could not retain any member affiliated with an organization which promotes disruption of the peaceful existence of the community. The decision to discharge plaintiff was based solely on plaintiff's affiliation and activities with the KKK.

12. Plaintiff made remarks in TV interviews and was quoted in the press to the effect that his discharge would not prevent his Klan activities and that he would remain a Klan member for life.

13. The widely reported news that an employee of the Sheriff's Office was recruiting for the Klan generated an immediate and strong negative reaction in the black community in Jacksonville. Ronnie Ferguson, then Deputy Director (and now interim Executive Director) of the Jacksonville Urban League, a respected community organization concerned with minority affairs, testified that he and his colleagues received approximately 200 telephone calls and live comments from members of the black community expressing serious concern about the developing situation and inquiring what could be done about it. Numerous comments were made to the effect that arrests by Sheriff's personnel would be resisted at all costs for fear that the arrestees would never make it to the Duval County jail alive.

14. Subsequent to plaintiff's discharge on February 15, 1982, employees in the records section of the Sheriff's Office expressed relief that Sheriff Carson had acted swiftly to discharge plaintiff. Captain Nelson, a veteran of twenty-three years in the Sheriff's Office and a supervisor in the records section, testified, and the Court so finds, that if Sheriff Carson had not discharged plaintiff, given the significant minority representation within the records section as well as the conservative philosophies of the white employees in the section, disruptive confrontations with plaintiff would have been inevitable due to the employees' perceptions about the Klan.

15. The news media continued to cover plaintiff's situation on an almost daily basis. The local Jacksonville newspapers carried articles announcing that Mr. Wilkinson would lead a protest rally against Sheriff Carson's decision to discharge plaintiff on Thursday, February 25, 1982, outside the Duval County Courthouse.

16. At about 3:00 P.M. on Thursday, February 25, 1982, six hooded and robed Klansmen (five men and a woman) marched toward the Duval County Courthouse. Mr. Wilkinson, plaintiff and his wife, and three others marched in their outfits to the front of the courthouse. Plainclothes intelligence...