Smith v. Price

• Citation: 616 F.2d 1371
• Decision Date: 16 May 1980
• Docket Number: No. 78-1007,78-1007
• Parties: Willie R. SMITH, Plaintiff-Appellee, v. Everett E. PRICE, Chief of Police, Athens, Georgia, and City of Athens Personnel Board, City of Athens, Georgia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1371

616 F.2d 1371

Willie R. SMITH, Plaintiff-Appellee, v. Everett E. PRICE, Chief of Police, Athens, Georgia, and City

of Athens Personnel Board, City of Athens,

Georgia, Defendants-Appellants.

No. 78-1007.

United States Court of Appeals, Fifth Circuit.

May 16, 1980.

Denny C. Galis, Athens, Ga., for defendants-appellants.

James W. Smith, Athens, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BROWN, HILL and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Willie R. Smith, a former Athens, Georgia police officer, was dismissed by the Chief of the Athens Police Department, Everett E. Price, for violation of rules and regulations ¹ applicable to Athens police officers.

After unsuccessfully appealing to the City of Athens Personnel Board, Smith filed a lawsuit under 42 U.S.C. § 1983 alleging that his dismissal deprived him of rights guaranteed by the first, fifth, and fourteenth amendments to the Constitution, and that the rules and regulations pursuant to which he was discharged were unconstitutionally vague and overbroad on their face. The district court agreed and ordered reinstatement, back pay, injunctive relief and attorney's fees. Smith v. Price, 446 F.Supp. 828 (M.D.Ga.1977).

The relevant facts as set out in the district court's opinion are as follows:

Officer Smith on February 8, 1976, was married and living in the adjoining county of Oconee. On that date while off duty and out of uniform, he visited the woman with whom he was having an extra-marital affair, in her apartment in Athens and while there was shot by the woman's former lover. Following an investigation he was suspended for ten (10) days by Chief Price who stated as a reason for that action:

"You are hereby suspended for a period of 10 working days for the violation of the Departmental Rules and Regulations, Section 101.48. A copy of the Internal Affairs Investigation Report is attached for your information. As per to our discussion of this date any further violation of the departmental rules and regulations will lead to dismissal." Plaintiff's Exhibit "1" at 12. (Emphasis supplied).

Section 101.48 of the regulations concerned conduct unbecoming an officer.

On June 8, 1977, Chief of Police Price received a telephone call from the woman with whom plaintiff Smith was having an affair in February 1976. She advised that the affair had continued and told of many personal difficulties between her, Officer Smith and Officer Smith's wife.

Until the receipt of this telephone call the defendant police chief and city officials were unaware of plaintiff Smith's post-February 1976 extra-marital conduct. As his personnel file and the evidence show, he was then considered to be generally satisfactory and in some respects an outstanding police officer.

Chief Price directed Major Wallace to investigate the situation. He did, and based upon what the plaintiff, his wife and his girlfriend freely and voluntarily said, Major Wallace reported:

"TO: Everett E. Price, Chief of Police

"FROM: Mark Wallace, Uniform Division Commander

"SUBJECT: Internal Investigation; Officer Willie R. Smith

"OFFENSE: Failure to adhere to and abide by:

1. Departmental General Order 76-4 Rules and Regulations: Section I.A and I.Af Rules Governing Orders and Commands:

2. Section II.A, II.A1 and II.A2 Professional Conduct of Departmental Members;

3. Section II.E Professional Conduct of Departmental Members (Members are Prohibited);

4. Section III.F Responsibilities of Members;

5. General Order 76-4 Conduct Unbecoming an Officer;

6. City of Athens Merit System: Section VIII A 1.f. (1), (6), and (9).

"DATE: June 8, 1977

BASIS FOR INVESTIGATION:

On June 8, 2977 (sic), Miss ______ * contacted Chief Price telephonically and alleged misconduct on Willie Smith's part directed toward her, to include physical assualt (sic) and forceful threats.

SYNOPSIS:

Investigation disclosed that Officer Willie Smith has had an affair with Miss ______ for a period of more than three (3) years. During this time Officer Smith was shot three (3) times in Miss ______ apartment on February 8, 1976 by a boyfriend of Miss ______. As a result of that incident Officer Smith was suspended for a ten (10) day period and advised in writing that other such misconduct would result in his dismissal.

Since the above incident, Officer Smith has repeatedly visited Miss ______ in her residence while he was on a duty tour, not concerned with official Police business and without reporting his location to the dispatcher or shift command, all in violation of Departmental General Orders. During these visits Miss ______ alleges Officer Smith has physically assaulted, verbally threatened, and on several occasions drawn his departmental issued service revolver on her to enforce his threats. The last such incident being less than two weeks prior to this date.

Miss ______ visited Officer Smith's residence in Oconee County on June 7, 1977 and removed his departmental issued gun belt and service revolver from his private vehicle. Miss ______ fired Officer Smith's service revolver six times, three rounds of which struck Officer Smith's private vehicle and upon leaving the premises Miss ______ took the departmental issued gun belt and revolver with her. Officer Smith failed to report the above in violation of Departmental General Orders.

CONCLUSIONS:

That officer Willie R. Smith has maintained an affair with Miss ______ for a period of approximately three years. That Officer Smith renewed this affair approximately one month after he was shot in her apartment in violation of Departmental Rules & Regulations I. A. and I. A. 4. Rules Governing Orders and Commands.

That Officer Smith has visited Miss ______ at her residence in an on duty status, not on official business, on several That Officer Smith failed to report Miss ______ taking his gun and gunbelt from his privately owned vehicle in violation of Departmental Rules & Regulations III. F. Responsibility of Members.

occasions without advising the dispatcher or shift supervisors of his whereabouts in violation of Departmental Rules & Regulations II. E. 6. Responsibilities of Members (members are prohibited).

That Officer Smith stated before the Promotion Review Committee that he was not 'running around' on his wife in violation of Departmental Rules & Regulations II. A., II. A. 1. and II. A. 2. That Officer Smith's involvement with Miss ______ is in violation of general order 76-4 Rules & Regulations Conduct Unbecoming an Officer and City of Athens Merit System Section VIII. A. 1. f. (1), (6), (9). " Plaintiff's Exhibit 6.

446 F.Supp. at 829-31.

Based on the Wallace memorandum and the trial testimony, the district court found that:

the sole cause of Officer Smith's dismissal was his continuing to have an extra-marital affair after being commanded by Chief Price to refrain from doing so. The other conclusions were inserted by Major Wallace and adopted by Chief Price only to buttress this principal conclusion; in and of themselves they would not have been cause for dismissal. Neither Chief Price nor the Personnel Board would have decided to dismiss him for those reasons had he not continued to run around on his wife.

446 F.Supp. at 833. The district court further found that Officer Smith's affair was protected activity under the first amendment guarantee of freedom of association and the constitutional right to privacy, citing, inter alia, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The district court held that because the City failed to meet its burden of showing that Smith's protected conduct substantially and materially impaired his usefulness as a police officer, his dismissal constituted a deprivation of his constitutional rights. Turning to the issue of the facial constitutionality of the rules and regulations, the district court determined that the regulations were unconstitutionally vague and overbroad in their entirety. The district court awarded Officer Smith reinstatement, back pay, allowances and attorney's fees, and, in addition, permanently enjoined the Police Chief and the Personnel Board from utilizing the City Merit Rules and the Police Department Regulations to regulate the conduct of anyone. We reverse.

Upon careful examination of the trial record and the district court's opinion, it is clear to us that the district court viewed this case as one primarily concerned with a government employee's right to freedom of association within a zone of privacy. We have determined, however, that the question whether an adulterous relationship is protected activity under the Constitution need not be reached. Assuming without deciding that the extramarital affair in which Smith engaged is protected by the first amendment right to freedom of association or the constitutional right to privacy, ² we hold that Officer Smith's dismissal was not constitutionally improper.

The Wallace memorandum and the trial testimony establish that the City alleged five reasons for Officer Smith's discharge:

(1) Smith's continuation of the affair after Chief Price's order not to do so, in violation of the rules requiring adherence to lawful orders;

(2) Smith's visits to the woman's home while on duty without notifying the police dispatcher, in violation of the rule against loitering while in uniform (3) Smith's failure to report the taking of his police gun and gunbelt, in violation of the rule governing proper care of departmental equipment;

(4) Smith's false statement before the Promotion Review Board that he was not "running around" on his wife, in violation of rules requiring loyalty and accountability, and prohibiting conduct which would bring the department into disrepute; and

(5) Smith's total involvement with the woman, in violation of rules prohibiting conduct unbecoming an officer,...