Stidham v. Peace Officer Standards & Training

• Decision Date: 24 September 2001
• Docket Number: No. 00-4036,00-4036
• Citation: 265 F.3d 1144
• Parties: (10th Cir. 2001) MIKE STEVEN STIDHAM, Plaintiff - Appellant, v. PEACE OFFICER STANDARDS AND TRAINING; UTAH STATE DEPARTMENT OF PUBLIC SAFETY; STATE OF UTAH; SIDNEY P. GROLL; and JOHN DOES 1-3,Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1144

265 F.3d 1144 (10th Cir. 2001)

MIKE STEVEN STIDHAM, Plaintiff - Appellant, v. PEACE OFFICER STANDARDS AND TRAINING; UTAH STATE DEPARTMENT OF PUBLIC SAFETY; STATE OF UTAH; SIDNEY P. GROLL; and JOHN DOES 1-3,Defendants - Appellees.

No. 00-4036

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 24, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 99-CV-624-B)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen W. Cook, Salt Lake City, Utah, for Plaintiff-Appellant.

Nancy L. Kemp, Assistant Attorney General (Jan Graham, Utah Attorney General, with her on the brief), Salt Lake City, Utah, for Defendants-Appellees.

Before KELLY and McKAY, Circuit Judges, and BRIMMER,^* District Judge.

McKAY, Circuit Judge.

Appellant Mike Steven Stidham brought state and federal claims in the Third Judicial District of Utah against the State's Peace Officer Standards and Training Division (POST) and various individual defendants. After Defendants removed the case to federal court, the district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6), and this timely appeal followed. We exercise jurisdiction pursuant to 28 U.S.C. 1291.

I. Background

Appellant is a certified peace officer in the state of Utah. To become certified, Appellant completed a training and examination procedure established by POST, the state agency empowered to regulate the certification of peace officers employed in Utah.¹ Appellant was subsequently hired by the Salt Lake County Sheriff's Office then later joined the Tooele County Sheriff's Office.

In July 1998, Tooele County issued a policy requiring its peace officers to reside within county limits. Appellant was not a Tooele County resident and did not want to change his residence, so he sought employment elsewhere. He applied for one of seventeen open positions in the City of South Salt Lake; however, despite being ranked third in the testing and interview process, the city refused to hire him. Appellant was advised that the basis for his rejection was certain information provided by POST alleging that Appellant had raped a young girl, assaulted a Tooele County resident, resigned from his position with the Salt Lake County Sheriff's Office under threat of termination, and was "at risk" as a peace officer. Appellant declared this information to be false and attempted unsuccessfully to acquire POST's record of the allegations. He also applied for positions at other law enforcement agencies; however, despite being ranked highly among a number of candidates, he was repeatedly rejected due to the information provided by POST. At no time did POST initiate proceedings to suspend or revoke Appellant's certificate. In addition, POST neither conducted hearings nor provided Appellant with notice regarding the allegations against him.

Appellant brought suit against POST, its director, and other individuals employed by POST (identified only as John Does 1-3). Appellant's first cause of action alleged that Defendants violated Utah's Government Records Access and Management Act, Utah Code Ann. 63-2-101 to 909, based on their refusal to provide Appellant with copies of POST's records concerning him. Appellant's second cause of action alleged that Defendants violated 42 U.S.C. 1983 by failing to provide him both substantive and procedural due process while effectively revoking his certificate as a peace officer and foreclosing his employment opportunities. Appellant also alleged that Defendants invaded his constitutional right to privacy. The district court dismissed Appellant's federal claims under Federal Rule of Civil Procedure 12(b)(6) and remanded his state claim to Utah's Third District Court. Only the federal claims are at issue on appeal.

We review de novo the district court's grant of a 12(b)(6) motion to dismiss, bearing in mind that "all well-pleaded allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). In addition, a "12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quotation and citation omitted).

II. Due Process Claims

A. Property Interest: Peace Officer Certification

Appellant first contends that the district court erred in holding that he failed to allege that the State deprived him of a constitutional property right without procedural due process. Appellant argues that he had a constitutionally-protected property right in his certification as a peace officer, which POST effectively revoked without notice or hearing.

Procedural due process is only available to plaintiffs that establish the existence of a recognized property or liberty interest. See Setliff v. Mem'l Hosp., 850 F.2d 1384, 1394 (10th Cir. 1988) (citing Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)). The Supreme Court has held that a license to practice one's calling or profession is a protected property right. See Bell v. Burson, 402 U.S. 535, 539 (1971). In Bell, the Court held that a traveling minister's license to drive automobiles could not be suspended without procedural due process. The Court declared:

Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.

Id. at 539. Expanding upon Bell, Justice Brennan subsequently declared that "[w]hat was said of automobile drivers' licenses in Bell v. Burson . . . is even more true of occupational licenses." Barry v. Barchi, 443 U.S. 55, 69-70 (1979) (Brennan, J., concurring). This court has previously suggested that in some circumstances Forest Service permits, once issued, may warrant such constitutional protection, see Fed. Lands Legal Consortium ex rel. E.A. Robart Estate v. United States, 195 F.3d 1190, 1200 (10th Cir. 1999), as well as licenses to sell beer, see Tanasse v. City of St. George, No. 97-4144, 1999 WL 74020, at *2 (10th Cir. Feb. 17, 1999).

Thus, the revocation or removal of a license or certificate that is "essential in the pursuit of a livelihood" requires procedural due process under the Fourteenth Amendment. Bell, 402 U.S. at 539. Because Appellant's certification is both required and enables him to work as a peace officer in the State of Utah, we agree that Appellant retains a protected property right in his peace officer certificate.

Defendants do not dispute Appellant's right to due process for the deprivation of his certification. Instead, Defendants argue that Appellant has not been deprived of his certificate because the certificate has not been revoked or suspended, nor have revocation or suspension proceedings been initiated against him, and thus no right to due process has arisen. Appellant, on the other hand, asserts that Defendants "effectively" revoked Appellant's certificate by disseminating the aforementioned allegations against him to his potential employers, thus removing all validity and benefit that the certificate may have had.

The resolution of this dispute is aided by an examination of POST's statutory authority for collecting and disseminating information. Under the Peace Officer Training and Certification Act, Utah Code Ann. 53-6-101 to 310, POST is managed by a director, who is empowered to "prescribe minimum qualifications for certification of peace officers[,] . . . prescribe standards for revocation of certification for cause . . . [and] provide for issuance of appropriate certificates." Id. 53-6-105(1)(b), (d). The director is thus authorized to certify peace officers and give evidence of their certification. Examining the remainder of the Act, the director is only authorized to receive and disseminate information regarding peace officers under two types of circumstances, both of which involve the suspension or revocation of the officers' certificates. First, 209 requires agencies employing officers to submit a change of status form to POST when an officer's employment terminates, indicating, inter alia, whether the officer "has resigned, retired, terminated, transferred, deceased, or that the peace officer's name has changed." Id. 53-6-209. Second, under 211:

(1) (a) The director may, upon the concurrence of the majority of the council revoke, refuse, or suspend certification of a peace officer for cause.

(b) Except as provided under Subsection 6 [suspension for felonies committed], the council shall give the person or peace officer involved prior notice and an opportunity for a full hearing before the council.

. . . .

(3) The director shall send notice to the governing body of the political subdivision employing the peace officer and shall receive information or comments concerning the peace officer from the governing body or the agency employing the officer before suspending or revoking that peace officer's certification.

. . . .

(7) The chief, sheriff, or administrative officer of a law enforcement agency is required to report to Peace Officer Standards and Training all conduct of employees who are peace officers, as provided in Subsection (1)(d) above [listing causes of action for revocation or suspension of certification].

Id. 53-6-211.

This presents a sensible system. POST has been set up as the state licensing agency for peace officers, established to provide standards, training, certification, and decertification of such officers. If a peace officer has acted improperly, the officer's employer reports such conduct to POST's council. If the officer's actions warrant further action, the council gives notice...