Thomas v. Whalen

• Decision Date: 21 April 1995
• Docket Number: No. 93-4129,93-4129
• Citation: 51 F.3d 1285
• Parties: , 10 IER Cases 868 Harry D. THOMAS, Plaintiff-Appellee, v. Lawrence WHALEN and Edward Ammann, Defendants-Appellants, City of Cincinnati, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1285

51 F.3d 1285

63 USLW 2677, 10 IER Cases 868

Harry D. THOMAS, Plaintiff-Appellee, v. Lawrence WHALEN and Edward Ammann, Defendants-Appellants City of Cincinnati, Defendant.

No. 93-4129.

United States Court of Appeals Sixth Circuit.

Argued Oct. 14, 1994.

Decided April 21, 1995.

Michael Hohn (argued and briefed), Cincinnati, OH, for Harry D. Thomas.

James F. McCarthy, III (argued and briefed), Fay D. Dupuis, City Solicitor's Office, Cincinnati, OH, for defendants-appellants.

Before: KEITH, WELLFORD, and DAUGHTREY, Circuit Judges.

DAUGHTREY, Circuit Judge.

This case stems from disciplinary action taken by police department officials against a Cincinnati Police Division officer who made several unauthorized public presentations --both oral and written--on behalf of the National Rifle Association, while wearing official insignia and identifying himself as a Cincinnati Police lieutenant. Alleging harassment and retaliation for the exercise of his free speech rights, the lieutenant, Harry D. Thomas, brought a civil rights action under 42 U.S.C. Sec. 1983 against his supervisors, Chief of Police Lawrence E. Whalen and Assistant Chief of Police Edward Ammann, as well as the City of Cincinnati. In response to the defendants' motion for summary judgment, the district court dismissed the complaint against the City but denied summary judgment to Chief Whalen and Assistant Chief Ammann. They have appealed the district court's order.

Because we find that the defendants took reasonable administrative action to preclude Lt. Thomas from exploiting his uniform and his position in the police department, while continuing to honor his First Amendment right to debate the propriety of gun control legislation, we conclude that the defendants did not violate a "clearly established right" belonging to the plaintiff. It follows that the two individual defendants were entitled to qualified immunity from suit and that the complaint against them should likewise have been dismissed. We, therefore, reverse the judgment of the district court.

I.

Lt. Harry Thomas is an outspoken opponent of gun control laws and an active member of the National Rifle Association. On September 7, 1988, Thomas attended a rally in Washington, D.C., sponsored by the NRA to protest the Brady Bill. During the rally, Thomas appeared at a press conference and later spoke to various elected officials. He was dressed in civilian clothes, but verbally identified himself as a police officer.

Thomas alleged that after he returned from Washington, he had a conversation on September 18, 1988, with Assistant Chief Ammann, who at that time supervised the police bureau to which Thomas was assigned. According to Thomas, Ammann told Thomas that he was not a team player, could not expect to receive any support from the administration of the Police Division and was ruining his career by his opposition to gun control measures. Allegedly, Ammann also told Thomas that he was to be transferred and that he would not be informed of the reasons for the transfer. That day, Thomas said, he was transferred from District 3 to District 2. According to Whalen and Ammann, however, Thomas was actually transferred on September 14, 1988, along with ten other lieutenants, as part of a standard rotation.

On June 6, 1989, Thomas attended a second NRA-sponsored rally in Washington. He again spoke to media representatives and again was dressed in civilian attire. But this time, at the request of the NRA, he wore his police badge on the left breast pocket of his suit coat. Thomas was introduced to the press as a member of the Cincinnati police force.

In mid-July 1989, Thomas wrote an essay expressing his views on gun control, entitled "Why Gun Laws Waste My Time". The essay appeared in a newspaper for members of Congress called Roll Call, and later became a full-page NRA advertisement, reproduced in several other publications. Whalen received a copy of the essay after its initial publication, but prior to its subsequent uses. In August 1989, Whalen instructed Thomas to answer, in writing, a list of questions regarding the essay. Thomas was also "advised [that] the Chief has not authorized it to be published in any commercial media in the future. If there is a possibility that this article may become commercial, it would be proper to stop same."

In August 1989, Thomas's photograph appeared in a publication entitled The Badge, a publication which law enforcement members of the NRA receive free of charge. The photo showed Thomas at the Washington rally held on June 6, 1989, in civilian clothes with his badge displayed.

On October 15, 1989, Chief Whalen directed Thomas to submit to an internal affairs interview concerning his participation in the June 1989 rally. On November 6, 1989, Thomas received a written reprimand regarding his participation, based on an alleged violation of Sec. 1.02 of the Police Division's Manual of Rules and Regulations and Disciplinary Process ¹ and Sec. 18.135 of its Police Procedure Manual. ² Thomas was censured for displaying his badge and for being introduced as "Lieutenant Harry Thomas, Cincinnati Police Department"; for failing to request permission to attend the news conference; and for failing to complete a "Public Appearance Report" upon his return to duty.

During July 1990, Thomas spoke at a rally sponsored by the Ohio Constitutional Defense Council in Dayton, Ohio, again opposing gun control.

On January 29, 1991, Thomas received his annual efficiency evaluation. Assistant Chief Ammann did not perform the initial evaluation, but was the reviewing officer. Ammann made comments ³ on the report in which he disagreed with the opinion of Thomas's immediate superior.

In October 1990, disciplinary charges were filed against Thomas for submitting a false affidavit in a court proceeding. ⁴ The charges were found to be true, and Thomas was suspended for two days. However, he appealed the finding to the civil service commission, which dismissed the charges.

On November 26, 1990, Ammann issued a written order to Thomas, regarding his responsibilities during public appearances and in attending court on behalf of a criminal defendant:

You are not to appear in uniform, display any identification card, or display your Police Division badge.

You are not to represent or identify yourself as a Lieutenant in the Cincinnati Police Division in any manner unless required through sworn court testimony.

You will prohibit associates, affiliations, sponsors, etc. from making those representations on your behalf ...

You will not attend court in an on duty status, nor will you be compensated by the Police Division. Your only compensation will be that provided to any other civilian witness; subpoena check.

Nothing within this order prohibits you from exercising the same right as any other civilian in these matters.

On December 14, 1992, Thomas was on duty, scheduled to testify on behalf of a criminal defendant charged with felonious possession of an automatic weapon. Thomas drove an unmarked police car to the courthouse and parked the car in a zone adjacent to the courthouse, designated "No Parking Except Police Vehicles". He then reported to police communications that he was unavailable to receive any official police calls. After testifying, Thomas reported to police communications that he was available again.

While he was in court, the unmarked car was ticketed. Upon his return to his district, Thomas issued a request to the Police Chief for cancellation of the ticket (Cincinnati police procedure provides for the cancellation of tickets when an official vehicle is being operated by an officer in the performance of official duties). He justified the request by saying that "the car is an assigned Police Division vehicle and I was on duty when it was parked...." Assistant Chief Ammann denied the request because of his previous order that Thomas not testify while on duty. Thomas paid the eight-dollar fine.

In July 1991, Thomas filed this Sec. 1983 action against Chief Whalen, Assistant Chief Ammann, and the City of Cincinnati. He alleged that Whalen and Ammann had interfered with, attempted to chill, and penalized him for exercising his First Amendment rights. Thomas specifically alleged that his transfer, the memo regarding his published articles, the questioning regarding one of those articles, the disciplinary charges associated with the affidavit, Ammann's directive regarding Thomas's future activities, Ammann's unfavorable comments in his review, the parking ticket, and an incident with the SWAT team ⁵ constituted deliberate harassment by Whalen and Ammann because of his opposition to gun control laws.

On September 23, 1993, the district court dismissed Thomas's claims against the City because Thomas alleged no independent wrongdoing by the City. Moreover, the court found that no municipal policy or custom could have caused Thomas's alleged deprivation. However, the district court declined to grant summary judgment in favor of Whalen and Ammann and thus rejected their claim of qualified immunity, based on the court's finding that a genuine issue of material fact existed regarding the interests of the Cincinnati Police Division in regulating Thomas's speech.

The district court specifically found that "at the time of the Defendants' alleged conduct, it was at least clearly established in the Sixth Circuit that a police officer may not be disciplined for speaking on a matter of public concern unless the speech has adversely affected the operations and internal working of the police department" and that there was a material question of fact on that issue. The district court further found that even if Thomas's speech did adversely affect the Police Division, there was a question of material fact regarding the reasonableness of Ammann's and Whalen's conduct under the circumstances.

On appeal of the district court's ruling, however, the parties implicitly agree...