Thaeter v. Palm Beach County Sheriff's Office, No. 03-13177.

• Decision Date: 26 May 2006
• Docket Number: No. 03-13177.,No. 03-13197.
• Citation: 449 F.3d 1342
• Parties: Ronald THAETER, Plaintiff-Appellant, v. PALM BEACH COUNTY SHERIFF'S OFFICE, Ed Bieluch, former Sheriff, in his individual capacity and Ric L. Bradshaw, in his official capacity as Sheriff of Palm Beach County,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees. Timothy Moran, Plaintiff-Appellant, v. Palm Beach County Sheriff's Office, Ed Bieluch, former Sheriff, in his individual capacity and Ric L. Bradshaw, in his official capacity as Sheriff of Palm Beach County,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

449 F.3d 1342

Ronald THAETER, Plaintiff-Appellant, v.PALM BEACH COUNTY SHERIFF'S OFFICE, Ed Bieluch, formerSheriff, in his individual capacity and Ric L. Bradshaw, in his official capacity as Sheriff of Palm Beach County,^*Defendants-Appellees.

Timothy Moran, Plaintiff-Appellant, v.Palm BeachCounty Sheriff's Office, Ed Bieluch, formerSheriff, in his individual capacity and Ric L. Bradshaw, in his official capacity as Sheriff of Palm Beach County,^*Defendants-Appellees.

No. 03-13177.

No. 03-13197.

United States Court of Appeals, Eleventh Circuit.

May 26, 2006.

COPYRIGHT MATERIAL OMITTED

Richard L. Rosenbaum, Law Offices of Richard L. Rosenbaum, Ft. Lauderdale, FL, for Thaeter and Moran.

Daniel R. Aaronson, Benjamin & Aaronson, P.A., Ft. Lauderdale, FL, for Thaeter.

Fred H. Gelston, Fred H. Gelston, P.A., West Palm Beach, FL, for Defendants-Appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and CUDAHY,^** Circuit Judges.

BIRCH, Circuit Judge:

This consolidated appeal presents the issue of whether photographs and videotapes of deputy sheriffs engaging in sexually explicit, off-duty conduct available for pay-per-view on the Internet is entitled to First Amendment protection.The district court granted the motion to dismiss of the sheriff who approved the terminations of the participating deputy sheriffs.We affirm.

I.BACKGROUND

Plaintiffs-appellantsRonald Thaeter and Timothy Moran were deputy sheriffs with the Palm Beach County Sheriff's Office("PBCSO").Prior to the fall of 2000, they had agreed to participate in sexually explicit photographs and videotapes for dissemination on pay-per-view websites operated by Elizabeth Maxwell, the wife of a third deputy sheriff, Jack Maxwell, who also was a participant.¹Elizabeth Maxwell conducted a one-time photographing session in a hotel room during which hundreds of photographs as well as videotapes were taken of group sexual activity.The participants understood that the photographing and videotaping were being created for distribution on her pay-per-view website.Deputies Thaeter, Moran, and Maxwell did request that their faces be obscured or disguised because of their concern for the sensitivity of their jobs as deputy sheriffs, but the film editing was not successful in preventing them from being identified.

Deputy Thaeter appeared in still photographs showing acts of intercourse, masturbation, and oral sex with multiple partners.These photographs together with photographs that involved the use of a PBCSO marked police car were posted on several pornographic websites on the Internet.Deputy Thaeter additionally participated in production of a "streaming video" or "real-time" movie, in which he engaged in intercourse, masturbation, and oral sex with his wife, Sorphea Thaeter, for broadcast on three pay-per-view websites.Deputy Moran participated in explicit group sexual activity shown in still photography disseminated over the websites, but he was not featured in any streaming videos.

In October 2000, a private citizen made an anonymous complaint to the PBCSO and reported the participation of the deputies in sexual activity displayed on the websites.The citizen also stated that the graphic materials portrayed included a nude female posing on marked patrol cars possibly owned by the PBCSO.Consequently, PBCSO Captain Mills submitted employee misconduct charges for the deputies to the Office of Professional Regulation, which ordered an investigation by the Bureau of Internal Affairs.

Investigator Paula Kronsperger conducted the investigation and interviewed the three deputies and Elizabeth Maxwell.She also contracted for thirty-day memberships in the four websites involved to inspect visually the subject photographs and videos.After reviewing hundreds of photographs, Investigator Kronsperger located a few where the faces of Deputies Thaeter, Moran, and Maxwell were identifiable, but she found no association with the PBCSO discernible to anyone not personally acquainted with the deputies.She further noted that all the photographic materials appeared to involve consensual sexual activity.

Investigator Kronsperger's report focused on three areas of misconduct by the deputies: (1) use of a PBCSO patrol vehicle, (2) an ethical violation under the Code of Ethics used by the PBCSO, and (3) other identifiable misconduct.Because Investigator Kronsperger's investigation revealed that the implicated PBCSO vehicle involved only Deputy Maxwell and his wife, who were not parties in this case in district court and, consequently, not parties in this appeal, we need not consider that issue.²Investigator Kronsperger described her investigation into an ethical violation by the deputies as determining "whether or not the Deputies['] appearance on the web-sites rises to the level of an ethics violation."Folder I, Exh. Aat 12.The Code of Ethics utilized by the PBCSO makes only this statement pertaining to a deputy's personal life: "I will keep my private life unsullied as an example to all."Id.

Investigator Kronsperger explained her reasoning for concluding that the subject Code of Ethics (II) had not been violated because of "policy failure" as follows:

The nature of the Deputies['] actions is not in question.The application of the policy is where questions arise.The above referenced policy statement is vague, in that, the intended communication of the policy to the employee is completely non-specific.Certainly, there are many non-criminal acts that would "sully" or tarnish one's private life.Which acts, and in this case off-duty acts, are to be applied to the policy?I researched the Canons of Ethics in order to locate any other guidelines that would govern the off-duty conduct of D/S Maxwell, D/S Thaeter, and D/S Moran.That search also met with negative results.

As an investigator, I am charged with the responsibility of identifying specific facts and making recommendations, based solely on those facts, as to whether or not a preponderance of evidence has been established to prove or disprove the existence of a policy violation.As there is no place for personal opinion in a fact-finding investigation, I must therefore recommend this aspect of the Code of Ethics be viewed as a policy failure.Due to it[]s general verbiage, this particular policy statement would inevitably entail the rendering of a subjective opinion and/or individual interpretation in order to arrive at any finding, whether sustainable or not.I would be remiss in my responsibilities as an Investigator if I did not raise this issue for consideration.

Id. at 13, ¶¶ 2-3.

Investigator Kronsperger also identified other misconduct with respect to the rules and regulations governing off-duty employment of PBCSO employees: "Sheriff's Office personnel shall obtain prior written approval from the Sheriff, using the approved request form, before engaging in other employment, occupation, profession or commercial enterprise."Id.(IX (16) Off-Duty Employment, PBCSO Rules and Regulations).In analyzing this identified misconduct by the deputies, Investigator Kronsperger determined that "[t]he Deputies did not seek or obtain written approval from the Sheriff in order to participate in their activities on the web-sites.Certainly, their requests would have been denied."Id.While the implicated deputies contended that they were not engaging in outside employment because they had no ownership in the websites, Investigator Kronsperger concluded that

there is a violation of policy as it relates to off-duty employment.D/S Maxwell, D/S Thaeter and D/S Moran did "involve themselves, and take part in,"Elizabeth Maxwell's and Bob Hall's pornographic business enterprises.The participation included the following:

• Posing for photographs depicting multiple partner sexual encounters.

• Knowledge that the sole purpose of their appearances in the photos and attendance at the photo shoots was to acquire enough photographic material to fill photo galleries for three pornographic web-sites.

• Signing a release allowing Elizabeth Maxwell to have exclusive rights to the use of the photographs.

• Receipt of financial gains, albeit indirectly through their spouses, from earnings acquired from the websites.

Id. at 14(second emphasis added).

Investigator Kronsperger additionally determined that the Deputies['] participation in the websites, by design, was meant to be secretive.This is supported by the following facts:

• The faces of the three men are obscured in all but a handful of the photographs on the web-sites.

• Failure to request written permission to participate in pornographic web-sites.

• The two web-sites that featured the wives of D/S Moran and D/S Thaeter were immediately shut down when D/S Thaeter and D/S Moran received notification of this investigation.The remaining site featuring Elizabeth Maxwell was not shut down, but at that point D/S Maxwell had already resigned his position with the Palm Beach County Sheriff's Office and was openly appearing on her web-site with no effort to conceal his identity.

• The web-sites were registered only in the names of the women.Any financial gains were, therefore, reportedly only paid to the women.The acquisition of earnings from the web-sites being paid only to the women is a technicality dwelled upon by Deputies in order to create the appearance of separating themselves from the business aspects of the web-sites.All parties performed on the web-sites.Even if the financial gains were paid only to the women, the Deputies certainly would have had an expectation of financial gain through their own participation.

Id. at 14-15(emphasis added).Accordingly, Investigator Kronsperger recommended finding that the deputies' violation of IX(16) Off-Duty Employment had been sustained factually.

On December 23, 2000, Administrative Manager Frank DeMarco of Internal Affairs of the...