Spiering v. City of Madison

• Decision Date: 01 August 1994
• Docket Number: No. Civ. 92-4078.,Civ. 92-4078.
• Citation: 863 F. Supp. 1065
• Parties: Thomas SPIERING, Plaintiff, v. CITY OF MADISON, South Dakota; Joan Krantz, Mayor; Marvin Hanson, Joanne Gagnon, George Lee, and Robert Hall, City Commissioners; and Gary Gile, Chief of Police, Defendants.
• Court: U.S. District Court — District of South Dakota

863 F. Supp. 1065

Thomas SPIERING, Plaintiff, v. CITY OF MADISON, South Dakota; Joan Krantz, Mayor; Marvin Hanson, Joanne Gagnon, George Lee, and Robert Hall, City Commissioners; and Gary Gile, Chief of Police, Defendants.

No. Civ. 92-4078.

United States District Court, D. South Dakota, Southern Division.

August 1, 1994.

COPYRIGHT MATERIAL OMITTED

Rita D. Haverly-Allen, Hagen, Wilka and Archer, P.C., Sioux Falls, SD, Stephen Lane Pevar, ACLU, Denver, CO, for plaintiff.

Gary P. Thimsen, Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for defendants.

MEMORANDUM OPINION AND ORDER

PIERSOL, District Judge.

Plaintiff Thomas Spiering brings this 42 U.S.C. § 1983 action claiming that defendants violated his First Amendment rights when they demoted him from the position of police captain. The Court took the case under advisement following a bench trial that concluded on Wednesday, July 20, 1994.

I. Findings of Fact

Plaintiff is now sixty years old. He finished eighth grade and went to work on the family farm. He completed a GED certificate in 1966, but he has no other formal education. He has been married forty years and has two grown children and four grandchildren. Plaintiff was honorably discharged from the military and has been a law enforcement officer since 1964, except for a five-year period.

Plaintiff has been employed at the Madison Police Department since 1982. He was promoted to the rank of sergeant in 1988, he served as acting Chief of Police for a time during 1988, and he was promoted to the rank of captain in October 1988 on the recommendation of former Police Commissioner Marvin O. Hanson. Commissioner Hanson served as an elected official; he has an eighth grade education and no law enforcement training or experience. At the time of plaintiff's promotion to captain, plaintiff and Robert Broderick were the only two police captains employed by the Madison Police Department. Prior to the events which gave rise to this lawsuit, Commissioner Hanson reprimanded plaintiff for failure to exercise proper supervisory judgment; however, Commissioner Hanson withdrew the reprimand from plaintiff's personnel file in August 1989. (Def.Ex. B.)

On Saturday night, May 20, 1989, at approximately 10:30 p.m., plaintiff and patrolman Robert Haug were on duty in a patrol car. Plaintiff saw Mark Harmon drive his car at a high rate of speed across a 7-Eleven convenience store parking lot located on a street corner. Plaintiff activated his patrol car lights, stopped Harmon's car, and asked Harmon for his driver's license. Harmon had three female passengers in the car. Off-duty Madison policeman Doug Flora appeared on the scene, left his private vehicle, approached Harmon's car, began cursing Harmon for "cutting him off," and jerked Harmon's driver's license from plaintiff's hand. Plaintiff moved Flora from the vicinity of the Harmon car, and Flora left. Plaintiff returned to the Harmon vehicle. By that time, Harmon had keyed the microphone on his CB radio, and he asked plaintiff to talk to Harmon's father over the CB radio. Harmon's father was in his motor home parked in the Spies parking lot. Plaintiff refused Mark Harmon's request, and issued Harmon a citation for avoiding a traffic sign or signal, a city ordinance violation. (Pl.Ex. 1.)

Just before this traffic stop, Harmon had pulled out abruptly in front of another car in which a Madison police officer and Madison Chief of Police Greg Gile were riding. These two officers drove to the vicinity of the Harmon stop and parked across the street. Chief Gile believes, and the Court finds, that plaintiff validly stopped Harmon. When plaintiff refused to speak to Harmon's father over the CB radio, Mark Harmon asked Chief Gile to do so. Chief Gile refused to discuss the matter over radio and told Harmon's father to contact him on Monday morning if he wished to discuss the matter. Chief Gile was unimpressed by the Harmons' demanding, belligerent attitudes, and he was not aware that the Harmons were passing through the city and planned to be elsewhere on Monday.

Late that same evening, Harmon's father called former Mayor Joan Krantz and Commissioner Hanson, both of whom were at their homes asleep, and he asked them to come to his motor home to discuss the incident involving his son. Both officials went to the motor home. The Harmons stated that they were from out-of-state and would be leaving Madison the next morning. They complained about the way Mark Harmon had been treated by Madison police and asked the officials to void the ticket.

Based upon the Harmons' complaints, Mayor Krantz and Commissioner Hanson felt the traffic stop had been improperly handled. Mayor Krantz and Commissioner Hanson did not contact Chief Gile or plaintiff to ask for their views of the traffic stop. Commissioner Hanson suggested that they void the ticket, and Mayor Krantz agreed they should. They retrieved the copy of the citation plaintiff had given to Mark Harmon, and they told the Harmons the ticket was rescinded and they would not have to return to South Dakota. Mayor Krantz believed that she had authority under S.D.C.L. § 9-29-23¹ to void tickets for city ordinance violations, but the Court finds the statute gave her no such authority. Mayor Krantz delegated the actual task of voiding the ticket to Commissioner Hanson, although she personally contacted each of the other commissioners and told them she and Commissioner Hanson had voided the ticket.

Following the Harmon traffic stop, plaintiff continued on patrol. When he passed the Spies parking lot, Harmon's father motioned for plaintiff to pull into the parking lot. As a result of their conversation, plaintiff believed that Commissioner Hanson had voided the ticket he had written to Mark Harmon.

The following day, Sunday, May 21, 1989, Commissioner Hanson called Chief Gile at home and told Gile that he and Mayor Krantz had decided to void the Harmon ticket. Although Chief Gile replied that he thought the ticket should be processed through the court system, he testified he did not respond as forcefully as he might now because at that time he had been Chief for only three weeks. Chief Gile was not given a choice about what to do regarding the ticket. Chief Gile then called plaintiff and complimented his handling of the Harmon incident, but he told plaintiff that the ticket would possibly be voided if such had not already occurred. At Commissioner Hanson's direction, Chief Gile did not file with the Clerk of Court the police copy of the Harmon citation, and Chief Gile placed it in his desk drawer until he threw it away during routine cleaning six months later.

Plaintiff checked on the status of the ticket within six months and could find no record in the police department or the Clerk of Court's office that the ticket had been processed. Plaintiff felt that voiding a ticket would send a message to the public that some citizens are above the law and this would undermine law enforcement. Police officers within the Madison Police Department and Madison citizens were concerned about the voiding of the Harmon ticket. Plaintiff had no knowledge of any other tickets that were rescinded by the Mayor or Police Commissioner, and the Court finds that the Harmon ticket was the only one ever voided in the City of Madison.

On December 11, 1989, Chief Gile disciplined plaintiff because of the way he handled a traffic stop of Earl Hutchinson. (Def.Ex. F.) Plaintiff, who was riding on patrol with a new patrolman, Officer Wollman, watched Hutchinson drive up over a curb, through a parking lot, and almost hit a telephone maintenance box. Plaintiff stopped Hutchinson a short distance from his home, but, instead of arresting him for driving while intoxicated, plaintiff told Hutchinson to "take it home." Hutchinson continued on and a short distance away struck a parked car. Plaintiff then arrested Hutchinson for DWI, and a blood test showed a blood alcohol level of .135. Plaintiff did not mention in his written report his first stop of Hutchinson, and he told Officer Wollman not to make a report of it on the basis that it was not necessary for him to make a report. On February 5, 1990, the City Commission upheld plaintiff's one-week suspension without pay. Plaintiff served the suspension from February 8 to 13, 1990.

On January 10, 1990, plaintiff wrote a letter to South Dakota Attorney General Roger Tellinghuisen asking for his legal opinion as to whether a police chief, mayor, or police commissioner had authority to void a traffic citation without the police officer's knowledge or consent. (Pl.Ex. 2.) Although this letter was not written on City of Madison letter-head, plaintiff signed it as "Captain Thomas Spiering" and listed the police department address. The Attorney General believed that plaintiff was acting in his official capacity as a police captain in requesting the opinion and for that reason responded by letter on January 24, 1990. (Pl.Ex. 3.) The Attorney General stated that a Chief of Police would have authority to decline to prosecute a traffic citation and a police commissioner would have such authority if he was a certified law enforcement officer for the municipality, but a mayor would not have such authority.

Plaintiff showed this letter to his friend, Robert Broderick, who by that time had retired from his position of police captain several days after the City Commission terminated his employment on the recommendation of Commissioner Hanson and then reinstated him. Plaintiff and Broderick discussed the ticket voiding with Lake County States Attorney Wilson Kleibacker, who declined to initiate a prosecution against Madison city officials because of a possible conflict of interest. Plaintiff and Broderick then discussed the matter with special county prosecutor Glen Eng, who also declined to prosecute.

Plaintiff and Broderick decided to institute a recall petition in an effort to remove Commissioner Hanson from office.² Based upon...